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Empowering Women-legal Rights and Economic Opportunities in Africa

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This book looks at the effect of legal and economic rights on women’s economic opportunities. It examines family, inheritance, and land laws, which often restrict these rights in ways that hurt women, and looks at some labor law issues. In addition, the book provides a series of indicators that show whether a country does or does not provide particular legal provisions.

AFRICA DEVELOPMENT FORUM


Empowering Women
Legal Rights and


es in AfricaOpportuniti


Mary Hallward-Driemeier and Tazeen Hasan


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Empowering
Women






Empowering
Women


Mary Hallward-Driemeier and Tazeen Hasan


A copublication of the Agence Française de Développement and the World Bank


Legal Rights and
Economic Opportunities
in Africa




© 2013 International Bank for Reconstruction and Development / Th e World Bank
1818 H Street NW, Washington DC 20433
Telephone: 202-473-1000; Internet: www.worldbank.org


Some rights reserved
1 2 3 4 15 14 13 12


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Attribution—Please cite the work as follows: Hallward-Driemeier, Mary, and Tazeen Hasan. 2012.
Empowering Women: Legal Rights and Economic Opportunities in Africa. Africa Development
Forum series. Washington, DC: World Bank. DOI: 10.1596/978-0-8213-9533-2. License: Creative
Commons Attribution CC BY 3.0


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All queries on rights and licenses should be addressed to the Offi ce of the Publisher, Th e World Bank,
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ISBN (paper): 978-0-8213-9533-2
ISBN (electronic): 978-0-8213-9534-9
DOI: 10.1596/978-0-8213-9533-2


Cover photo: Dana Smillie, World Bank. Cover design: Debra Naylor, Naylor Design, Inc.


Library of Congress Cataloging-in-Publication Data
Hallward-Driemeier, Mary, 1966–
Empowering women : legal rights and economic opportunities in Africa / by Mary Hallward-
Driemeier and Tazeen Hasan.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-8213-9533-2 — ISBN 978-0-8213-9534-9 (electronic)
1. Women—Africa—Economic conditions. 2. Women—Africa—Social conditions. 3. Women’s
rights—Africa. 4. Sex discrimination against women—Africa. I. Hasan, Tazeen. II. Title.
HQ1787.H35 2012
331.4096—dc23
2012010863




Africa Development Forum Series


Th e Africa Development Forum series was created in 2009 to focus on issues
of signifi cant relevance to Sub-Saharan Africa’s social and economic develop-
ment. Its aim is both to record the state of the art on a specifi c topic and to
contribute to ongoing local, regional, and global policy debates. It is designed
specifi cally to provide practitioners, scholars, and students with the most up-to-
date research results while highlighting the promise, challenges, and opportuni-
ties that exist on the continent.


Th e series is sponsored by the Agence Française de Développement and
the World Bank. Th e manuscripts chosen for publication represent the high-
est quality in each institution and have been selected for their relevance to the
development agenda. Working together with a shared sense of mission and
interdisciplinary purpose, the two institutions are committed to a common
search for new insights and new ways of analyzing the development realities of
the Sub-Saharan Africa region.


Advisory Committee Members


Agence Française de Développement
Pierre Jacquet, Chief Economist
Robert Peccoud, Director of Research


World Bank
Shantayanan Devarajan, Chief Economist, Africa Region
Célestin Monga, Senior Adviser, Development Economics and Africa Region
Santiago Pombo-Bejarano, Editor-in-Chief, Offi ce of the Publisher


v




Sub-Saharan Africa


IBRD
39088


ZIMBABWE


ANGOLA


BURUNDI


RWANDA


CHAD


NIGER


UGANDA KENYA


SOMALIA


ETHIOPIA


ERITREASUDAN


SOUTH
SUDAN


CENTRAL
AFRICAN REPUBLIC


CONGO


NIGERIA


TOGO


SENEGAL


LIBERIA


SIERRA LEONE


GUINEA


CÔTE
D’IVOIRE


GUINEA-BISSAU


DEMOCRATIC
REPUBLIC
OF CONGO


SOUTH
AFRICA


LESOTHO


SWAZILAND


BOTSWANA


ZAMBIA


MOZAMBIQUE
MADAGASCAR


COMOROS


SEYCHELLES


MALAWI


TANZANIA


NAMIBIA


MAURITIUS


CAMEROON


GABON


EQUATORIAL GUINEA


SÃO TOMÉ AND PRÍNCIPE


MALI


BENIN
BURKINA FASO


MAURITANIACAPE
VERDE


THE GAMBIA


GHANA


Réunion
(Fr.)


Mayotte
(Fr.)




Titles in the Africa Development Forum Series


Africa’s Infrastructure: A Time for Transformation (2010) edited by Vivien Foster
and Cecilia Briceño-Garmendia


Gender Disparities in Africa’s Labor Market (2010) edited by Jorge Saba Arbache,
Alexandre Kolev, and Ewa Filipiak


Challenges for African Agriculture (2010) edited by Jean-Claude Deveze


Contemporary Migration to South Africa: A Regional Development Issue (2011)
edited by Aurelia Segatti and Loren Landau


Light Manufacturing in Africa: Targeted Policies to Enhance Private Investment
and Create Jobs (2012) by Hinh T. Dinh, Vincent Palmade, Vandana Chandra,
and Frances Cossar


Informal Sector in Francophone Africa: Firm Size, Productivity, and Institutions
(2012) by Nancy Benjamin and Ahmadou Aly Mbaye


Financing Africa’s Cities: Th e Imperative of Local Investment (2012) by Th ierry
Paulais


Structural Transformation and Rural Change Revisited: Challenges for Late
Developing Countries in a Globalizing World (2012) by Bruno Losch, Sandrine
Fréguin-Gresh, and Eric Th omas White


Th e Political Economy of Decentralization in Sub-Saharan Africa: A New Imple-
mentation Model (2013) edited by Bernard Daffl on and Th ierry Madìes


Enterprising Women: Expanding Opportunities in Africa (2013) by Mary
Hallward-Driemeier


vii






Contents


Foreword xvii
Preface xix
Acknowledgments xxi
About the Authors xxiii
Abbreviations xxiv


Overview 1


Chapter 1: Law, Gender, and the Business Environment 1
Chapter 2: Women’s Legal Rights across the Region 2
Chapter 3: Legal Pluralism: Multiple Systems, Multiple Challenges 14
Chapter 4: Women’s Rights in Practice: Constraints
to Accessing Justice 15
Chapter 5: Th e Way Forward 16
References 17


1 Law, Gender, and the Business Environment 19


Structure of the Report 20
Importance of Economic Rights in Business Incentives 21
Extent of Legal Protection of Women’s Economic Rights 22
Main Areas of the Law for Women In Business 23
Nature of the Legal System 27
Impact of Rights on Economic Opportunities 30
Conclusion 35
Notes 35
References 36


ix




x CONTENTS


2 Women’s Legal Rights across the Region 39


Th e Women–LEED–Africa Database 39
Scoresheet 1: Ratifi cation of International
Treaties and Conventions 42
Scoresheet 2: Gender Provisions in Constitutions 46
Scoresheet 3: Recognition of Customary and Religious Law 50
Scoresheet 4: Legal Capacity 60
Scoresheet 5: Marriage and Property 64
Scoresheet 6: Land Law and Land Rights 80
Scoresheet 7: Labor Laws 82
Conclusion 85
Notes 86
References 89


3 Legal Pluralism: Multiple Systems, Multiple Challenges 91


Th e Role and Interplay of Various Sources of Law 91
Challenges of Multiple Legal Systems and Inconsistent Laws 111
Conclusion 114
Cases Cited 115
Notes 117
References 118


4 Women’s Rights in Practice: Constraints to Accessing Justice 121


Formal Judicial Systems in Practice 122
Customary Systems in Practice 127
Conclusion 131
Cases Cited 132
Notes 132
References 132


5 The Way Forward 135


Strengthening Legal Substance 135
Securing Existing Benefi ts 140




CONTENTS xi


Increasing Women’s Awareness 146
Proceeding with Conviction—and Respect 148
Conclusion 152
Cases Cited 152
Notes 152
References 153


Appendix A: Scoresheets 155


Appendix B: Comparison of Databases on Women
and the Law 173


Appendix C: Database of Court Cases 175


Index 195


Boxes


O.1 How Do Property Rights Aff ect Economic Opportunities? 4
O.2 Stronger Economic Rights, Greater Opportunities for


Self-Employed Employers 6
1.1 Defi ning “Discrimination” 20
1.2 Importance of Property Rights for Economic Opportunity 24
1.3 Women and Land in Ghana: Precarious Rights, Lower Yields 31
1.4 Changing the Balance of Intrahousehold Power in the United States 32
1.5 Stronger Economic Rights, Greater Opportunities for


Self-Employed Employers 33
2.1 Th e Convention on the Elimination of All Forms


of Discrimination against Women 43
2.2 Th e Protocol to the African Charter on Human and Peoples’


Rights on the Rights of Women in Africa 44
2.3 Th e Central Place of Customary Law in Africa 50
2.4 How Does Sharia Treat Women’s Property? 55
2.5 Head-of-Household Laws in Common Law Countries 61
2.6 Alternatives to Default Marital Property Regimes: Prenuptial


and Postnuptial Contracts 66
2.7 Do Matrilocal and Matrilineal Communities Provide Stronger


Rights for Women? 71




xii CONTENTS


2.8 Are Dowries and Bride Payments Bad for Women? 72
2.9 Protecting the Marital Home as a Woman’s Place of Business 74
2.10 Divorce Laws Recognizing Women’s Nonmonetary Contributions 75
2.11 Stripping Women of Customary Rights to Land through


Titling in Kenya 81
3.1 Apartheid-Era Legislation in Namibia Continues to Diff erentiate


among Ethnic Groups 98
3.2 Using the Constitution to Challenge Gender Discrimination:


Th e Case of Unity Dow 100
3.3 Changing Precedents Regarding the Status of Marital Property


in Kenya 102
3.4 Recognition of Nonmonetary Contributions in Marriage in Tanzania 104
3.5 Same Facts, Diff erent Conclusions: Th e Case of


Mojekwu v. Mojekwu 113
4.1 Shortcomings of the Justice System from the Chief Justice in Ghana 122
4.2 Delaying and Denying Justice in Ghana 123
4.3 Women Are Participating at Senior Levels of the Legal


Profession in Several Countries 124
4.4 Th e Experience of Women Councillors in Local Customary


Courts in Uganda 128
4.5 Making History: Botswana’s First Female Paramount Chief 129
4.6 Nowhere to Turn: Women’s Complaints of Harassment in Malawi 129
5.1 Removing Exemptions to Nondiscrimination Provisions


in Kenya 136
5.2 Subtle Diff erences in Titling Requirements, Important


Diff erences in Outcomes: Lessons from Ethiopia 138
5.3 Guidelines for Strengthening Local Customary Courts 143
5.4 Sensitizing Legal Professionals to Gender Issues 143
5.5 Using Paralegals to Provide Low-Cost Legal Assistance to


the Poor 145
5.6 Equipping Women in Uganda with Knowledge of the Law 145
5.7 Conducting a Gender-Disaggregated Assessment of the


Legal Landscape before Embarking upon Reform 149
5.8 Reforming Family Codes: Lessons from Benin, Botswana,


and Morocco 151




CONTENTS xii i


Figures


BO.2.1 Women Are Active Entrepreneurs, Particularly in Lower-Income
Countries, But Largely Self-Employed 6


BO.2.2 Th e Share of Female Employers Does Not Vary
with National Income 7


BO.2.3 Th e Smaller the Gender Gap in Economic Rights, the Smaller the
Gender Gap in Entrepreneurs Who Employ Other Workers 7


O.1 All Countries Recognize the Principle of Nondiscrimination 8
O.2 Most Countries Have Ratifi ed International Conventions


on Women’s Rights 9
O.3 Some Countries Recognize Customary Law and Allow It


to Discriminate against Women 10
O.4 Head-of-Household Rules Are Common in Both Middle- and


Low-Income Countries 10
O.5 Diff erent Types of Property Regimes Grant Women Very


Diff erent Rights to Inherit Marital Property 12
O.6 Only a Minority of Countries Protect Women’s Land Rights 13
O.7 Many Countries Restrict the Type of Work Women Can


Perform and Women’s Hours 14
B1.2.1 Types of Employment of Men and Women, by World Region 24
B1.2.2 Percentage of Labor Force Th at Is Self-Employed and Employs


Other Workers, by Gender and Region 25
B1.5.1 Women Are Active Entrepreneurs, Particularly in Lower-Income


Countries, But Largely Self-Employed 33
B1.5.2 Th e Share of Female Employers Does Not Vary with


National Income 34
B1.5.3 Th e Smaller the Gender Gap in Economic Rights, the Smaller the


Gender Gap in Entrepreneurs Who Employ Other Workers 34
2.1 Most Countries Have Ratifi ed International Conventions on


Women’s Rights 45
2.2 For Most Civil Law Countries and a Quarter of Common Law


Countries, Being a Monist State Automatically Gives
International Conventions the Force of Law Domestically 46


2.3 All Countries Recognize the Principle of Nondiscrimination 48
2.4 Constitutions Recognizing Property Ownership, Equal Right


to Work, and Right to Equal Pay 49




xiv EMPOWERING WOMEN


2.5 Standing to Challenge the Constitutionality of Statutes Varies
across Countries 49


2.6 Some Countries Recognize Customary Law and Allow It to
Discriminate against Women 53


2.7 Constitutions Recognizing Customary Law, by Type of Legal
Tradition 54


2.8 Constitutions Recognizing Religious Law 56
2.9 Countries with Statutes Recognizing Customary Law as a Source


of Law 57
2.10 Countries with Statutes Recognizing Religious Law as a Source


of Law 58
2.11 Treatment of Customary and Religious Law, by Income, Legal


Tradition, and Rule of Law 59
2.12 Statutory Recognition of Customary and Religious Courts 60
2.13 Head-of-Household Rules Are Common in Both Middle-


and Low-Income Countries 63
2.14 Head-of-Household Rules Are More Common in Countries


with Weaker Rule of Law 64
2.15 Distribution of Default Marital Property Regimes 69
2.16 Statutory and Traditional Default Marital Property


Regimes Overlap 70
2.17 Division of Marital Property on Divorce, by Default Marital


Property Regime and Selected Indicators 76
2.18 Woman’s Entitlement to Marital Property on Divorce, by


Default Marital Property Regimes and Type of Union 77
2.19 Widows’ Entitlement to Inherit Marital Property When


Husband Dies Intestate, by Default Marital Property Regime
and Type of Union 79


2.20 Diff erent Types of Default Marital Property Regimes Grant
Women Very Diff erent Rights to Inherit Marital Property 79


2.21 Widow’s Entitlement to Use Marital Property, by Default
Marital Property Regime 80


2.22 Only a Minority of Countries Provide Statutory Protections to
Women’s Land Rights 82


2.23 Constitutional Recognition of Nondiscrimination
in the Workplace 83




CONTENTS xv


2.24 Statutory and Constitutional Protection of the Right to
Equal Pay for Work of Equal Value 84


2.25 Many Countries Restrict the Type of Work Women Can
Perform and Women’s Hours 85


4.1 Th e Number of Female Plaintiff s in Ethiopia Has Been
Rising—But Male Plaintiff s Still Dominate in Higher and
Superior Courts 126


B5.2.1 Diff erent Policies Have a Strong Impact on Whose
Name Land Is Titled 138


Tables


2.1 Main Features of Default Marital Property Regimes 67
2.2 Inequalities in Administration of Property During Marriage,


by Type of Regime 73
3.1 Forums for Resolving Civil Disputes in Liberia, 2008–09 106
4.1 Number of Male and Female Judges in Kenya, 2009 124
4.2 Number of Male and Female Magistrates and Court Offi cers


in Cameroon, 2009 124






Expanding opportunities for women has intrinsic value. It is also instrumen-
tal in fostering development. Realizing the potential of all people is needed to
ensure growth, productivity, and a vibrant society. Empowering Women: Legal
Rights and Economic Opportunities in Africa brings new data and analysis to
recommend how best to move this agenda forward.


Strengthening the incentives and abilities to pursue opportunities expands
women’s economic empowerment. Property rights are central in this process
because they ensure that people can reap the benefi ts of their eff orts. Policy
makers shape property rights through laws and regulations, and the legal system
supports their enforcement. Yet despite their importance, before the publication
of this volume, no study had looked systematically across Sub-Saharan Africa to
examine the impacts on women’s economic empowerment.


Assessments of laws and regulations governing the business environment
rarely examine whether they have diff erent impacts on women and men. Th ey
fail to do so partly because they look at issues such as how to register property
or enforce contracts, presuming that everyone can own property or enter into
a contract. A major contribution of this book is to demonstrate that in many
Sub-Saharan countries, economic rights for women and men are not equal.
Areas of family law, inheritance law, and land law are not generally included in
studies of business regulations. But it is precisely these areas of law that defi ne
legal capacity and the ability to own and control assets—and it is in these areas
that explicit gender gaps are most likely.


To document the gender gaps in formal economic rights, the book draws
on the Women’s Legal and Economic Empowerment Database for Africa
(Women–LEED–Africa). Covering all 47 countries in Sub-Saharan Africa, this
new database provides detailed indicators and links to statutes, constitutions,
and international conventions on issues of legal capacity, marital property, land
ownership, and labor law. Th e book’s recommendations focus not only on spe-
cifi c substantive changes to the law but also on ensuring that rights are enforced
and the system of justice is made more accessible. Th e recommendations also


Foreword


xvii




xvii i FOREWORD


target women, showing how a few key decisions—such as registering a mar-
riage, choosing a marital property regime, titling assets and businesses, and
writing wills—can have dramatic impacts on their rights to property.


Th e book illustrates the benefi ts of bringing law and economics together.
For lawyers, it provides evidence on how laws and legal reforms can improve
economic outcomes. Links to specifi c statutes and case law facilitate compari-
sons of de jure gender gaps in rights, and discussions of the de facto function-
ing of the legal system show how it can hamper women’s access to justice. For
economists, the book demonstrates that a broader set of laws beyond business
regulations has direct gender impacts. Th e rich set of programs and approaches
to expand access to the legal system the book discusses invite further research
into their eff ectiveness in expanding women’s access to credit, investment, and
entrepreneurship.


Th is book provides compelling evidence that the areas of law it examines
need to be addressed—in terms of substance, enforcement, awareness, and
access—if economic opportunities for women in Sub-Saharan Africa are to
continue to expand.


Ngozi Okonjo-Iweala
Coordinating Minister of Economy and


Minister of Finance for the Federal Republic of Nigeria




Th is book looks at the eff ect of legal and economic rights on women’s economic
opportunities. It focuses on entrepreneurship because women in Africa are
active entrepreneurs, and the links between property rights and the ability to
enter contracts in one’s own name aff ect entrepreneurial activities.


Th e laws that are the focus of this book are not business laws and regula-
tions, which are generally gender blind and presuppose that individuals can
own property or enter into contracts. Instead, the book examines family, inheri-
tance, and land laws, which oft en restrict these rights in ways that hurt women.
Th is book surveys constitutions and statutes in all 47 countries in Sub-Saharan
Africa to document where gender gaps in these laws impinge on women’s legal
capacity, property rights, or both. Th e results are introduced in a new data-
base: the Women’s Legal and Economic Empowerment Database for Africa
(Women–LEED–Africa).


Th e book also looks at some labor law issues, such as restrictions on the types
of industries or hours of work in which women may engage and provisions for
equal pay for work of equal value. Th ese laws aff ect women as employees and
infl uence the attractiveness of wage employment versus entrepreneurship. Th ey
were also selected because they aff ect the choice of enterprise women may run.
Th e equal pay for work of equal value provisions are also of interest as an indica-
tor of the recognition of women’s broader economic rights.


Th is book provides a series of indicators that show whether a country does
or does not provide particular legal provisions. Several points are worth empha-
sizing in interpreting these indicators. First, the indicators are binary; there is
no attempt to diff erentiate between small and large gender gaps. Second, the
indicators are not used to generate an index or otherwise aggregate the indica-
tors; no weights are given to diff erentiate the relative importance of diff erent
sets of laws. Th ird, the indicators refl ect whether certain legal provisions are
recognized in a country or not; because the link between the indicator and
gender gaps is not always straightforward, care must be taken in making value
judgments. Although some indicators reveal that women are treated equally or


Preface


xix




xx PREFACE


identify gender diff erences in treatment, others do not. For example, the data-
base includes indicators on whether customary or religious law is recognized as
a formal source of law. Although recognition of these sources of law can have
implications for women’s rights (as discussed in chapter 3), it does not necessar-
ily imply that women’s rights are stronger or weaker. Conversely, the inclusion
of some protections for women’s rights may refl ect not the strong standing of
women but rather the fact that gender equality is not seen as axiomatic and
needs to be explicitly stated.


Chapter 1 argues for the importance of broadening the set of laws that need
to be examined in order to determine how law aff ects women’s economic oppor-
tunities. Chapters 2 and 3 focus on formal rights and how they have been upheld
in court decisions. Chapter 4 examines the gap between laws on the books and
practice on the ground. Chapter 5 looks at how both the substance of law and
women’s access to justice issues can be improved to expand women’s ability to
pursue economic opportunities.


Most assessments of the business climate for women overlook the areas of law this
study examines. Policy makers need to focus more closely on closing these legal—and
other—gaps in order to expand the economic opportunities for women in Sub-Saharan
Africa.


A companion volume, Enterprising Women: Expanding Opportunities in Africa
(forthcoming 2013), examines in more detail ways to improve women’s ability to move
into higher return activities. Drawing on the fi ndings of this report, it fi nds a signifi cant
role for improving women’s legal and economic rights.




xxi


Th is book was written with important contributions from colleagues at the
World Bank. In addition to contributions to chapters 1, 2, and 4, Mark Blackden
provided invaluable assistance by introducing the authors to key local partners,
moderating workshops, and pushing the authors to broaden the scope of the
work. Tazeen Hasan, Jane Kamangu, and Emilia Lobti collected the informa-
tion on the formal legal economic rights of women in the region, assembling
the Legal and Economic Empowerment Database (Women–LEED–Africa). Th ey
also brought together and distilled the lessons from case law that, together with
the database, form the basis of the analysis in this book.


Insightful comments and suggestions were provided by participants in work-
shops in Addis Ababa, Cape Town, Dakar, Nairobi, and Washington DC, from
Cameroon, the Democratic Republic of Congo, Ethiopia, Th e Gambia, Ghana,
Kenya, Malawi, Mali, Nigeria, Rwanda, Senegal, South Africa, Sudan, Tanza-
nia, and Uganda. Particular thanks are given to Mekonnen Firew Ayano, Reena
Badiani, Elena Bardasi, Lisa Bhansali, Christina Biebesheimer, Rea Abada Chi-
ongson, Aline Coudouel, Susan Deller Ross, Asli Demirgüç-Kunt, Deval Desai,
Shanta Devarajan, Louise Fox, Anne Goldstein, Markus Goldstein, Sarah Iqbal,
Sandra Joireman, Maureen Lewis, Waleed Malik, Andrew Mason, Nicholas
Menzies, Ferenc Molnar, Ana Maria Munoz Boudet, Pierella Paci, Rita Ram-
alho, Ana Revenga, Bob Rijkers, Caroline Sage, Carolina Sanchez-Paramo, Sud-
hir Shetty, Sevi Simavi, and Vijay Tata for their comments and suggestions. Th e
text benefi ted from the editorial services of Bruce Ross-Larson.


Financial support from the Dutch BNPP Trust Fund, and the World Bank’s
Gender Action Plan, the Africa Chief Economist Regional Studies Program,
the Finance and Private Sector Development Chief Economist Offi ce, and the
Development Economics Department is gratefully acknowledged. Th e study
was carried out under the overall guidance of Marilou Uy, director for Finance
and Private Sector Development in Africa, and Shanta Devarajan, chief econo-
mist for the Africa Region.


Acknowledgments






xxii i


Mary Hallward-Driemeier is a lead economist and adviser to the Chief Econ-
omist of the World Bank. Since joining the World Bank as a Young Professional
in 1997, she has published articles on entrepreneurship, fi rm productivity, the
impact of the investment climate on fi rm performance, the impact of fi nan-
cial crises, and determinants of foreign direct investment. She was the deputy
director for World Development Report 2005: A Better Investment Climate for
Everyone. Mary helped establish the World Bank’s Enterprise Surveys Pro-
gram, now covering more than 100,000 enterprises in 100 countries. She is
also a founding member of the Microeconomics of Growth Network and is
co-leading the Jobs Knowledge Platform. She received her MS in development
economics from Oxford University as a Rhodes Scholar and her PhD in eco-
nomics from the Massachusetts Institute of Technology.


Tazeen Hasan is a lawyer with expertise in fi nance and private sector develop-
ment and justice and gender issues. She was the legal specialist on the team
for World Development Report 2012: Gender Equality and Development and the
MENA companion report, “Opening Doors: Gender Equality in the Middle
East and North Africa.” Prior to joining the World Bank Group, Tazeen prac-
ticed as a barrister in the United Kingdom for 10 years, specializing in civil and
commercial law. While living in Kenya, she also worked on legal issues relating
to the confl ict in South Sudan; she is currently a trustee of the International
Association for Digital Publications, a nongovernmental organization focus-
ing on higher education in developing countries. Tazeen obtained a masters
(LLM) in international law from the London School of Economics and a BA
in law from Pembroke College, University of Oxford. She is a member of the
London Bar.


About the Authors




CEDAW Convention on the Elimination of All Forms of
Discrimination against Women


GDP gross domestic product
ILO International Labour Organization
Women–LEED–Africa Women’s Legal and Economic Empowerment


Database for Africa


Abbreviations


xxiv




1


Overview


Most assessments of the business climate for women look at regulations, avail-
ability of credit, and similar features of the economy. Th ey overlook the areas
of the law this book examines: marriage, divorce, inheritance, land rights, and
labor. But these are the laws that determine who has control over assets, thereby
infl uencing the types of economic opportunities that are available. Men and
women in Sub-Saharan Africa are all too oft en treated diff erently in all of
these areas—almost always to the detriment of women. To expand economic
opportunities for women—particularly opportunities for entrepreneurship,
which is key to economic growth in the region—policy makers need to focus
on closing these gaps.


Chapter 1: Law, Gender, and the Business Environment


Can individuals reap the rewards of their investments of time and resources?
Are they restricted in their legal ability to make decisions that aff ect their
economic activities? Th ese are central questions for people in business every-
where. To answer them, one has to understand property rights and the ability
of entrepreneurs to make economic decisions in their own name.


Th is book looks at the property rights and legal capacity of women, how and
why they diff er from those of men, and how these diff erences aff ect women’s
economic and entrepreneurial opportunities in Sub-Saharan Africa. It looks at
the formal property and legal rights of women and men, examining constitu-
tions, international agreements, statutes, and case law. It presents evidence of
the practical challenges to exercising these rights and makes recommendations
for strengthening women’s economic rights—on the books and in practice.


Business regulations stipulate the procedures for registering property or
businesses, enforcing contracts, and safeguarding investor or creditor rights.
Th ey would seem the natural starting point for a legal analysis. Such regulations
rarely include gender-diff erentiated provisions. But seemingly gender-blind




2 EMPOWERING WOMEN


regulations presuppose that the parties can enter into contracts, move freely,
access forums of economic exchange, and own property or control assets in
their own name. Th is is not always true for men and women equally.


A principal fi nding of this study is that other areas of the law, rarely addressed
in analysis of the business environment, play a determining role in framing
women’s economic rights. Laws governing marriage, divorce, inheritance, land
rights, and labor markets, rather than business regulations, determine whether
women and men are equally able to make economic decisions in their own
name or whether their ability to enter into contracts or own, administer, trans-
fer, or inherit assets and property is restricted. It is precisely in these areas that
gender diff erences, including outright discrimination, are most apparent.


Strengthening women’s economic and legal rights is a good thing in and of
itself. But it also has real eff ects—on women’s investment, agricultural produc-
tivity, and labor force participation (box O.1).


Chapter 2: Women’s Legal Rights across the Region


A new database, the Women’s Legal and Economic Empowerment Database for
Africa (Women–LEED–Africa), was created for this study. It documents which
countries legally allow diff erential treatment between women and men and
along which dimensions. Th e database covers all 47 Sub-Saharan countries and
the 5 most important sources of law:


• International treaties and conventions provide legal protections that are bind-
ing on their signatories. Th e extent of their direct application domestically
depends partly on whether the country is a “monist” or “dualist” state (trea-
ties and conventions are directly applicable in monist states but need to be
incorporated into domestic laws in dualist states).


• Constitutions are the highest source of law in a country. Th ey lay out the
guiding principles for legal rights. Th e database focuses on constitutional
provisions for nondiscrimination based on gender and, as appropriate, pro-
visions explicitly relating to promoting gender equality.


• Th e statutes examined include family and civil codes, marital property laws,
inheritance laws, land laws, and labor laws. Th ese areas, rather than being
generic business regulations, determine who has legal capacity, who can own
and dispose of property, and who has restricted labor opportunities.


• Customary law is recognized in constitutions, statutes, or both as a sepa-
rate—and oft en equal—source of law in many Sub-Saharan countries. Th is
recognition is sometimes restricted to certain areas. Th e database focuses on
how customary law aff ects legal capacity, property rights, and inheritance.




OVERVIEW 3


• Religious law is recognized as a separate—and oft en equal—source of law in
many countries. In some cases, it is recognized as the primary source of law;
in others, it is recognized as the applicable source of law for members of a
particular religion for certain issues. Th e database focuses on how religious
law aff ects legal capacity, property rights, and inheritance.


Th e database includes seven “scoresheets.” Th e scoresheets assess where each
country stands with regard to international agreements and conventions; con-
stitutional nondiscrimination and gender-equality provisions; recognition of
customary and religious law; legal capacity; property rights, notably in marriage
and inheritance; land laws; and labor laws.


Four key messages emerge from the database:


• All countries’ constitutions recognize the principle of nondiscrimination.
All but two countries have also signed international conventions prohibit-
ing discriminating against women. But legal exceptions are widespread in
constitutions and in statutes governing marital property, inheritance, land,
and labor.


• Many of the discriminatory provisions apply not to women as women but to
women as married women. In many countries, marriage changes the legal
status and rights of women, conferring legal capacities and responsibilities
on husbands and removing them from wives.


• Th e treatment of women’s economic rights is not closely related to a coun-
try’s income. Raising national income by itself is thus unlikely to improve
women’s legal and economic rights—more interventionist reforms will prob-
ably be needed.


• Gender gaps in economic rights reduce women’s ability to grow a business
and employ workers. Th e share of female employers is larger where women’s
economic rights are stronger (box O.2).


Constitutional Recognition of Nondiscrimination
All Sub-Saharan countries recognize the principle of nondiscrimination in con-
stitutions, in the international conventions to which they are signatories, or
both (fi gures O.1 and O.2).


Th e constitutional recognition of customary law is widespread—it applies
in all common law countries and in almost half the civil law countries in
Sub-Saharan Africa. Where constitutions do not recognize customary law,
it is implicitly recognized in statutes, particularly statutes on marriage or
inheritance. What varies across countries is the extent to which constraints
are placed on customary law in upholding the principle of nondiscrimination
(fi gure O.3).




4 EMPOWERING WOMEN


BOX O.1


How Do Property Rights Affect Economic Opportunities?
An extensive literature shows the importance of property rights for growth, invest-
ment, and government effectiveness. Aggregate cross-country data show a positive
association between the quality of institutions or property rights and growth, though
the exact causal mechanism can be hard to establish.


Many recent studies are microeconomic analyses, generally within a single coun-
try that has changed legal rights or that grants different rights to different groups.
Examples of such changes are described below.


Strong Land Rights Can Promote Investment
Empirical work suggests that when women control a larger share of resources, agricul-
tural productivity rises (Saito, Mekonnen, and Spurling 1994; Udry and others 1995;
Quisumbing 1996; Besley and Ghatak 2009) and poverty falls (World Bank 2001). Inse-
cure property rights to land have multiple ramifi cations for agriculture and how rural
economic activity is organized. The risk that land will be expropriated deters investment.
Insecure property rights also reduce borrowers’ ability to pledge land as collateral, tight-
ening credit constraints. Ill-defi ned property rights to land can inhibit land transactions—
rentals or sales—preventing potential gains from trade (Aryeetey and Udry 2010).


Goldstein and Udry (2008) examine the effect of contested land rights on invest-
ment and productivity in agriculture in Akwapim, Ghana. They show that individuals
who hold powerful positions in a local political hierarchy have more secure tenure
rights—and therefore invest more in land fertility, leading to much higher output. The
intensity of investments on different plots cultivated by a given individual corresponds
to the individual’s security of tenure over the plots.


Besley (1995) shows that individuals in Ghana vary their investment across plots
depending on the security of their rights—and that property rights need to be under-
stood as embedded in a broader social context.


Some evaluations have shown an increase in agricultural productivity and a (weak)
increase in access to credit where formal titling programs are in place (see, for example,
Pande and Udry 2005). The weak increase in access to credit has been attributed to
two factors. First, creditors often have only weak rights to foreclose on land (Field and
Torero 2008). Second, collateral is not the only constraint to accessing fi nance: a profi t-
able idea and the ability to work in a reasonably hospitable investment climate are also
needed (Besley and Ghatak 2009).


One of the challenges for women is that titling has too often been done under
a single name, the male head of household. As a result, in some countries, such as




OVERVIEW 5


Kenya, land is overwhelmingly titled only in men’s names. Ethiopia has tried to remedy
this situation by mandating that land be titled jointly. Its effort has greatly increased
women’s ownership over land (Deininger and others 2008).


. . . And Increase Labor Supply
Field (2007) evaluates the impact of titling program in the slums of Peru. She fi nds little
impact of titling on decisions to invest in the home or plot of land, but she does fi nd
an impact on labor supply, particularly for women. Holding title freed members of the
household from having to remain on the plot to ensure a claim over it.


Changes in Inheritance Laws Alter the Incentive
of Families to Invest in Their Daughters
Deininger, Goyal, and Nagarajan (2010) analyze the effect of changes to the Hindu
Succession Act in some southern states of India that gave equal rights to girls and
women in inheriting property. The new law, which raised the likelihood of their inher-
iting land (although it did not fully eliminate the gender difference), was associated
with increased age at marriage for girls, higher educational attainment of girls, and
increased household investments in daughters. Roy (2008) fi nds that the law also
increased women’s autonomy.


Changes in Family Law Can Strengthen Women’s Economic Empowerment
As family law determines who controls assets in the family, changes in legislation
can affect economic opportunities. Part of the effect may come from shifts in intra-
household bargaining power, as illustrated by Gray (1998) and Stevenson and Wolf-
ers (2006), who looked at changes in divorce laws in the United States. In U.S. states
where women’s bargaining position was strengthened, women were more likely to
initiate a divorce, and domestic violence fell.


Ethiopia changed its family law in 2000, raising the minimum age of marriage for
women, removing the ability of a husband to deny a wife permission to work outside
the home, and requiring both spouses’ consent in the administration of marital prop-
erty. The reform, initially rolled out in selected regions and cities, now applies across
the country. Using two nationally representative household surveys, one in 2000 just
before the reform and one fi ve years later, Hallward-Driemeier and Gajigo (2010) fi nd a
substantial shift in women’s economic activities. In particular, women’s participation in
occupations that require work outside the home, full-time hours, and higher skills rose
more where the reform had been enacted (controlling for time and location effects).


Source: Hallward-Driemeier, forthcoming 2013.




6 EMPOWERING WOMEN


BOX O.2


Stronger Economic Rights, Greater Opportunities
for Self-Employed Employers
Entrepreneurs include individuals who are self-employed and individuals who work for
themselves and employ others. Increasing the share of employers among entrepre-
neurs is one important way to expand opportunities.


The gender pattern between the two types of entrepreneurship is striking. Women
represent about 40 percent of the nonagricultural labor force in Sub-Saharan Africa,
50 percent of the self-employed, but only a little more than 25 percent of employers
(box fi gure O.2.1). Factors that can help bridge this gap are thus important in helping
women entrepreneurs in particular.


In cross-country patterns, the share of self-employed individuals in the nonagricul-
tural labor force is inversely related to income: it is very high in low-income countries
and declines as country income rises. The same pattern does not hold for employers:
the share, which is small, changes little as country income rises (box fi gure O.2.2).
Instead, the share of female employers depends on the extent of gender gaps in eco-
nomic rights (box fi gure O.2.3). More men than women are employers, but the gap is
smaller where rights are stronger. More women are employers where they have stron-
ger rights to access, control assets, and can enter into contracts in their own name.


Figure BO.2.1 Women Are Active Entrepreneurs, Particularly in Lower-Income Countries,
But Largely Self-Employed


Pe
rc


en
ta


ge
o


f w
om


en
in


n
on


ag
ri


cu
lt


ur
al



la


bo
r


fo
rc


e
(b


y
em


pl
oy


m
en


t
ca


te
go


ry
)


6 7 8


GDP per capita (log)


9 10
0


20


40


60


80


Self-employed Employers Unpaid family workers Wage earners


Source: Based on data from household and labor force surveys in low- and middle-income countries.




OVERVIEW 7


Figure BO.2.2 The Share of Female Employers Does Not Vary with National Income


Pe
rc


en
ta


ge
o


f w
om


en
in


n
on


ag
ri


cu
lt


ur
al


la
bo


r
fo


rc
e


(b
y


em
pl


oy
m


en
t


ca
te


go
ry


)


6 7 8


GDP per capita (log)


9 10


20


30


40


50


Self-employedIn labor force Employers Wage earners


Source: Based on data from household and labor force surveys in low- and middle-income countries.
Note: GDP = gross domestic product.


Figure BO.2.3 The Smaller the Gender Gap in Economic Rights, the Smaller the Gender Gap
in Entrepreneurs Who Employ Other Workers


Pe
rc


en
ta


ge
g


ap
b


et
w


ee
n


m
al


e
an


d
fe


m
al


e
em


pl
oy


er
s


Low income Middle income


Large gaps in women’s economic rights Limited gaps in women’s economic rights


0


25


50


75


100


125


Source: Hallward-Driemeier, forthcoming 2013.
Note: The bars exceed 100 percent if men are more than twice as likely as women to be employers.


—Continued




8 EMPOWERING WOMEN


Legal Capacity
Restrictions on women’s legal capacity do not vary by income. Th ey do vary
by type of legal system; they are found largely in civil law countries (the two
common law countries that do so are Sudan and Swaziland), where various
laws stipulate the man as “head of household” (fi gure O.4). Merely looking at
which countries include a “head of household” provision can be misleading,


An important policy implication from these results is that simply relying on income
will not be suffi cient to close gender gaps among self-employed employers. Indeed, as
chapter 2 demonstrates, gaps in economic rights in Sub-Saharan Africa are as preva-
lent in middle-income countries as in low-income countries. More needs to be done
to address legal reforms to enable more women entrepreneurs to move into the ranks
of employers.


The companion volume to this book, Enterprising Women: Expanding Opportunities
in Africa (Hallward-Driemeier, forthcoming 2013), explores in more detail the ways in
which gaps in economic rights affect the opportunities facing women entrepreneurs.


Figure O.1 All Countries Recognize the Principle of Nondiscrimination


Pe
rc


en
ta


ge
o


f c
ou


nt
ri


es
in


Su
b-


Sa
ha


ra
n


A
fr


ic
a


Low income Middle income


Nondiscrimination Specific provision for gender equality


Low income Middle income


NoYes


0


25


50


75


100


Source: Women–LEED–Africa.


BOX O.2 con t i nued




O
V


ERV
IEW





9


Figure O.2 Most Countries Have Ratified International Conventions on Women’s Rights


P


e


r


c


e


n


t


a


g


e




o


f




c


o


u


n


t


r


i


e


s




i


n


S


u


b


-


S


a


h


a


r


a


n




A


f


r


i


c


a


Convention on
the Elimination of All


Forms of Discrimination
against Women


Protocol to the
African Charter of


Human and Peoples’
Rights on the Rights


of Women in Africa


ILO Convention 100
(equal pay for


work of equal
value)


ILO Convention 111
(nondiscrimination


in employment)


ILO Conventions
4, 41, 89, and


1990 Protocol
(night work)


ILO Convention 183
(maternity


protections)


Not ratifiedRatified


0


25


50


75


100


Source: Women–LEED–Africa.
Note: ILO = International Labour Organization.




10 EMPOWERING WOMEN


Figure O.3 Some Countries Recognize Customary Law and Allow It to Discriminate
against Women


Pe
rc


en
ta


ge
o


f c
ou


nt
ri


es
in


Su
b-


Sa
ha


ra
n


A
fr


ic
a


Low income Middle income


Recognize customary law and exempt it from nondiscrimination based on gender
Do not recognize customary law


Recognize customary law and limit its ability to discriminate based on gender


0


25


50


75


100


Source: Women–LEED–Africa.


Figure O.4 Head-of-Household Rules Are Common in Both Middle- and Low-Income
Countries


Pe
rc


en
ta


ge
o


f c
ou


nt
ri


es
in


Su
b-


Sa
ha


ra
n


A
fr


ic
a


Low
income


Middle
income


Man as head
of household


Choice of
matrimonial home


by husband


Low
income


Middle
income


Husband can oppose
wife’s exercise of


trade or profession


Low
income


Middle
income


Need husband’s
permission to


open an account


Low
income


Middle
income


Not foundYes No


0


25


50


75


100


Source: Women–LEED–Africa.




OVERVIEW 11


however, for two reasons. First, some countries without such a provision have
statutes that provide the same powers of husbands over their wives. Second,
some countries that deem the man as head of household do so largely as a
social distinction; explicit provisions in these countries indicate that husbands
do not have power over the economic decisions of their wives. In short, a head
of household provision is not a reliable indicator of who makes the economic
decisions.


Husbands can have power over their wives’ economic activities in three
main ways. The right of the husband to choose the matrimonial home is the
most common, followed by the ability to deny a wife permission to pursue a
job or profession. The need to obtain a husband’s signature to open a bank
account is less common, at least in laws governing marriage (though many
countries allow banks to require a husband’s signature as part of their busi-
ness practice).


Property Regime for Marriage
Th e type of property regime in marriage determines the ability of both spouses
to own property during marriage and aft er its dissolution through death or
divorce. Th ese property rights determine spouses’ access to and control of assets
and other productive resources that can be used as collateral for loans or other
business purposes.


Statutory, customary, and religious marriages are subject to various property
regimes. Th e most common are community of property (including universal
community of property), separate ownership of property, dowry, and customary
law. Th e default marital regime that applies is regulated by the relevant family
statute or code, which in turn depends on the type of union (statutory marriage,
customary or religious marriage, or consensual union).


Inheritance Regime
Inheritance remains one of the main ways for women to acquire and control
property (figure O.5). It is also one of the main areas in which property
disputes arise. Constitutions, family and inheritance (succession), custom-
ary, and religious laws determine the legal framework for inheritance laws.
Common law practices and judicial precedent, particularly in common law
countries, also plays an important role in determining whether women,
married and unmarried, can own and control property and thus their abil-
ity to use such assets in their business.


Land
Land is central to obtaining credit, especially in Africa’s collateral-based bank-
ing systems. It is a key resource for enterprise development.


Land issues are also where many of the problems associated with multiple
legal systems come to the fore. Some land laws explicitly give rights only to men,




12 EMPOWERING WOMEN


some are gender neutral, and others recognize the rights of women to own land
(fi gure O.6).


Where there is no will, intestate succession laws in several countries, includ-
ing Ghana and Zambia, exclude customary land from the property a widow
can inherit from her husband. Under customary rules of inheritance, such land
usually passes to a male heir. Th is practice strips women of their right to inherit
a great deal of land, as customary land represents the majority of land in many
countries (81 percent in Zambia, 80 percent in Mozambique, 72 percent of
all land in Malawi, and 60 percent in Swaziland) (Economic Commission for
Africa 2003).


Labor
Women’s labor rights in Sub-Saharan Africa are legally protected in countries’
constitutions and labor laws as well as in the International Labour Organization
conventions that states ratify. Labor laws aff ect employees directly. Th ey can


Figure O.5 Different Types of Property Regimes Grant Women Very Different Rights to
Inherit Marital Property


N
um


be
r


of
c


ou
nt


ri
es


in
S


ub
-S


ah
ar


an
A


fr
ic


a


Co
m


m
un


ity


Se
pa


ra
te


Cu
sto


m
ar


y


Co
m


m
un


ity


Se
pa


ra
te


Cu
sto


m
ar


y


Co
m


m
un


ity


Se
pa


ra
te


Cu
sto


m
ar


y


Recognition of wife’s
portion of joint property


intestate


Entitlement of wife to a
minimal share of


matrimonial property


Statutory recognition of
customary law in property


inheritance (such as in
Succession Acts)


Not foundNoYes


0


10


5


15


20


25


Source: Women–LEED–Africa.




OVERVIEW 13


also aff ect entrepreneurship by infl uencing the availability and attractiveness of
wage employment.


Th e constitutions of 30 countries in the region go beyond a general clause on
nondiscrimination to provide equal rights to work, equal pay, or both. Imple-
menting the principle of nondiscrimination is critical to ensuring that these
provisions are respected.


Many countries restrict the hours women can work or the type of work
they can perform (fi gure O.7). Fift een countries restrict the nature of the
work woman can engage in; 20 more apply such restrictions only to pregnant
women. Twenty-three countries restrict the hours all women can work; another
12 restrict the hours of pregnant women only. Th ese restrictions—ostensibly
intended to protect women—limit women’s earning potential as wage workers.
Th ey may be one of the factors contributing to the fact that, outside agriculture,
women in Sub-Saharan Africa are predominantly self-employed in informal
and small enterprises.


Figure O.6 Only a Minority of Countries Protect Women’s Land Rights


Pe
rc


en
ta


ge
o


f c
ou


nt
ri


es
in


Su
b-


Sa
ha


ra
n


A
fr


ic
a


Low
income


Middle
income


Women’s land
rights are explicitly


protected


Statutory recognition
of customary law
applies to land
ownership and


distribution


Low
income


Middle
income


Low
income


Middle
income


Customary land
exempted from
succession laws


Women entitled to
co-ownership of


property based on
marriage


Low
income


Middle
income


Not foundNoYes


0


25


50


75


100


Source: Women–LEED–Africa.




14 EMPOWERING WOMEN


Chapter 3: Legal Pluralism: Multiple Systems,
Multiple Challenges


Th e coexistence of customary, statutory, and religious laws in all Sub-Saharan
countries create two main challenges. First, the very existence of multiple sys-
tems of law and sources of jurisprudence provides opportunity for discrimi-
nation and bias—and raises questions as to which system prevails in which
circumstances. Second, many core areas relevant to business, including prop-
erty rights, are governed by confl icting, and sometimes contradictory, provi-
sions in legal systems. Customary law is important because it touches the lives
of most of the population in many parts of Africa. Religious law can also apply
to substantial segments of the population and in some countries is the principle
source of family and inheritance laws.


Th e issue is not unique to Africa: inconsistent and confl icting sources of law
permeate every legal system in the world. To reduce uncertainty, a legal system
has to have a clear hierarchy regarding which law prevails when a confl ict arises.
To reduce discrimination within a legal system, it is essential that the principle
of nondiscrimination be regarded as paramount and that it supersedes confl ict-
ing provisions.


Chapter 3 examines the extent to which countries in the region defi ne this
hierarchy. It uses case law to illustrate how courts have interpreted cases at the


Figure O.7 Many Countries Restrict the Type of Work Women Can Perform and Women’s Hours


Pe
rc


en
ta


ge
o


f c
ou


nt
ri


es
in


Su
b-


Sa
ha


ra
n


A
fr


ic
a


Low income Middle income


Restrictions on nature of work Restrictions on hours


Low income Middle income
0


25


50


75


100


Not foundNo restrictionsOnly pregnant womenAll women


Source: Women–LEED–Africa.




OVERVIEW 15


intersections of diff erent sources of law and confl icting provisions on the books.
Case law is itself a formal source of law in common law systems and an integral
part of the legal landscape, as judicial decision making and precedent can shape
rights to property as much as any other source of law. Judicial precedent exists
to a lesser degree in civil law systems. For this reason, this chapter gives more
coverage to case law in a common law framework.


As the many case examples in this chapter illustrate, judicial interpretations
vary across countries and even over time in the same country. Case law can help
push for more progressive decisions by referring to constitutional principles of
nondiscrimination or obligations under international conventions such as the
Convention on the Elimination of all Forms of Discrimination against Women
(CEDAW); by fi lling gaps in statutory law; and by supporting the evolution
of customary law to refl ect contemporary reality. However, judicial decision
making can also entrench discriminatory principles. Th e chapter highlights the
importance of passing clear legislation and eff ectively implementing it to reduce
uncertainty in economic rights.


Chapter 4: Women’s Rights in Practice: Constraints
to Accessing Justice


Discriminatory laws are not the only source of gaps in women’s economic
rights—de facto constraints in accessing justice can also be an important source
of discrimination. For this reason, the de jure indicators in the database may not
always accurately refl ect rights in practice. It is therefore instructive to examine
the gaps between de jure rights and de facto practice.


Practical constraints—including lack of awareness, distance, cost, language,
and bias—can shape the ability to exercise statutory economic rights, especially
for women. When courts are located only in urban centers, conduct business
only in European languages, and charge high fees, many women do not see
them as a viable option. Few people in the region engage with the formal judi-
cial system or even have much knowledge of the legal protections it aff ords.
Particularly in parts of the region that are rural, have low income and education
levels, and retain strong customary traditions, people rarely perceive the formal
judicial system as relevant for securing their economic rights. Local elders or
chiefs and customary practices are more likely to determine how disputes are
resolved and property divided. Unless the formal system recognizes customary
law, access to property by millions of women is resolved outside the protections
aff orded in constitutions and statutes.


Women face multiple constraints in accessing justice in the customary legal
system, too. Even though customary law may be physically and culturally more




16 EMPOWERING WOMEN


accessible to them, their experience in customary institutions can diff er greatly
from that of men. Most customary courts are adjudicated by men and tend
to favor men in their decision making. Because women have historically been
excluded from adjudicating on matters of customary law, they cannot infl uence
the law’s evolution. Women may be unable to voice their grievances directly,
having to rely instead on the male head of the family to even bring a grievance
to the attention of the community’s elders.


Th e challenge is thus to balance the best elements of formal customary law
and informal traditional systems with expanded access to statutory protections
where they off er greater rights to women.


Chapter 5: The Way Forward


Property rights and legal capacity shape a woman’s ability to engage in economic
activity. Discriminatory family, marital property, and inheritance laws, alongside
formal legal restrictions on mobility, employment outside the home, and admin-
istration of personal assets, are barriers that states all too oft en condone. Th e cus-
tomary and social norms from which these laws derive represent a still deeper
challenge to reform. Th e study makes recommendations for reform at four levels.


Improving the Substance of Laws
Th e principle of nondiscrimination should cover all sources of law, including
customary and religious law. Protection should specifi cally cover, rather than
exclude, the important family and fi nancial decisions that all people face.


Four areas of law stand out as ripe for reform:


• Family law. Th e legal recognition of nonmonetary contributions during a
marriage in the division of property on divorce or death should be strength-
ened. Head-of-household and related provisions that diminish women’s legal
capacity and economic autonomy should be removed from family codes and
other statutes.


• Land law. Mandatory joint titling should be encouraged in order to
strengthen women’s claims to land.


• Labor and employment law. Restrictions that limit the type of work women
may engage in or the hours they may work should be removed.


• Customary law. Application of the nondiscrimination principle should be
enhanced, especially for marital property, inheritance, and land. Policy mak-
ers should build on the strengths and accessibility of customary dispute-
resolution mechanisms while off setting areas of gender bias in the applica-
tion of customary law.




OVERVIEW 17


Securing Existing Benefi ts
Five sets of measures are needed to enhance the administration of law and
access to justice:


• strengthening the enforcement of laws
• expanding access to laws and legal decisions
• improving the transparency and accountability of the justice system
• making the system more hospitable to women
• removing practical constraints to accessing justice, by reducing costs and


simplifying procedures and broadening the scope of legal services through
mobile courts, paralegals, expansion of small claims courts, and alternative
dispute resolution mechanisms


Empowering Women to Exercise Th eir Economic Rights
Women need to be aware of their legal protections and empowered to exercise
them. Practical steps to facilitate their empowerment focus on a few key deci-
sions: encouraging registration of marriages (including customary marriages),
encouraging the use of prenuptial agreements and the writing of wills, choosing
the marital property regime that best safeguards their access to property, register-
ing marital property jointly, and registering their businesses in their own name.


Proceeding with Conviction—and Respect
In draft ing new laws that are appropriate to a country’s situation, reformers
must consider the sociocultural context, thoroughly analyze the national legal
framework, and build on the strengths of existing systems. Th ey must focus
not only on laws but also on education, acceptance, and enforcement. Changes
in social norms take time—but without targeted reform, they are likely to take
even longer.


References
Aryeetey, Ernest, and Christopher Udry. 2010. “Creating Property Rights: Land Banks in


Ghana.” American Economic Review Papers and Proceedings 100 (2): 130–34.
Besley, Timothy. 1995. “Property Rights and Investment Incentives: Th eory and Evi-


dence from Ghana.” Journal of Political Economy 103 (5): 903–37.
Besley, Timothy, and Maitreesh Ghatak. 2009. “Property Rights and Economic Develop-


ment.” CEPR Discussion Paper 7234, Centre for Economic Policy Research, London.
Deininger, Klaus, Daniel A. Ali, Stein Holden, and Jaap Zevenbergen. 2008. “Rural Land


Certifi cation in Ethiopia: Process, Initial Impact, and Implications for Other African
Countries.” World Development 36 (10): 1786–812.


Deininger, Klaus, Aparajita Goyal, and Hari Nagarajan. 2010. “Inheritance Law Reform
and Women’s Access to Capital: Evidence from India’s Hindu Succession Act.” Policy
Research Working Paper 5338, World Bank, Washington, DC.




18 EMPOWERING WOMEN


Economic Commission for Africa. 2003. Land Tenure Systems and Sustain-
able Development in Southern Africa. Addis Ababa: Economic Commission for
Africa. ECA/SA/EGM.Land/2003/2, Southern Africa Office, Lusaka, Zambia.
http://www.uneca.org/eca_resources/publications/srdcs/land_tenure_systems_and_
sustainable_development_in_southern_africa.pdf.


Field, Erica. 2007. “Entitled to Work: Urban Property Rights and the Labor Supply in
Peru.” Quarterly Journal of Economics 122: 1561–602.


Field, Erica, and Maximo Torero. 2008. “Do Property Titles Increase Credit Access
Among the Urban Poor? Evidence from a Nationwide Titling Program.” Working
Paper, Department of Economics, Harvard University, Cambridge, MA.


Goldstein, Markus, and Christopher Udry. 2008. “Th e Profi ts of Power: Land Rights and
Agricultural Investment in Ghana.” Journal of Political Economy 116 (6): 981–1022.


Gray, Jeff rey S. 1998. “Divorce-Law Changes, Household Bargaining, and Married Wom-
en’s Labor Supply.” American Economic Review 88 (3): 628–42.


Hallward-Driemeier, Mary. Forthcoming 2013. Enterprising Women: Expanding Oppor-
tunities in Africa. Washington DC: World Bank.


Hallward-Driemeier, Mary, and Ousman Gajigo. 2010. “Strengthening Economic Rights
and Women’s Occupational Choice: Th e Impact of Reforming Ethiopia’s Family Law.”
Development Economics, World Bank, Washington, DC.


Hallward-Driemeier, Mary, Tazeen Hasan, Jane Kamangu, Emilia Lobti, and Mark Black-
den. 2011. Women’s Legal and Economic Empowerment Database (Women–LEED–
Africa), Development Economics, World Bank, Washington, DC.


Pande, Rohini, and Christopher Udry. 2005. “Institutions and Development: A View
from Below.” Economic Growth Center Discussion Paper 928, Yale University, New
Haven, CT.


Quisumbing, Agnes. 1996. “Male-Female Diff erences in Agricultural Productivity:
Methodological Issues and Empirical Evidence.” World Development 24 (10): 1579–95.


Roy, Sanchari. 2008. “Female Empowerment through Inheritance Rights: Evidence from
India.” STICERD Working Paper, London School of Economics, London.


Saito, Katerine A., Hailu Mekonnen, and Daphne Spurling. 1994. “Raising Productiv-
ity of Women Farmers in Sub-Saharan Africa.” Discussion Paper 230, World Bank,
Washington, DC.


Stevenson, Betsey, and Justin Wolfers. 2006. “Bargaining in the Shadow of the Law:
Divorce Laws and Family Distress.” Quarterly Journal of Economics 121 (1): 267–88.


Udry, Christopher, John Hoddinott, Harold Alderman, and Lawrence Haddad. 1995.
“Gender Diff erentials in Farm Productivity: Implications for Household Effi ciency
and Agricultural Policy.” Food Policy 20 (5): 407–23.


Women–LEED–Africa (Women’s Legal and Economic Empowerment Database),
http://documents.worldbank.org/query?title=Women+LEED+Africa+Database
developed by Mary Hallward-Driemeier, Tazeen Hasan, Jane Kamangu, Emila Lobti,
and Mark Blackden. Development Economics, World Bank.


World Bank. 2001. “Engendering Development: Th rough Gender Equality in Rights,
Resources and Voice.” Policy Research Report, World Bank, Washington, DC.




Chapter


19


1


Law, Gender, and the
Business Environment


Can individuals reap the rewards of their investments of time and resources?
Are they restricted in their legal ability to make decisions that aff ect their eco-
nomic activities? Th ese questions are central for people in business everywhere.
To answer them, one has to address property rights and the ability of people in
business to make economic decisions in their own name.1 Th e strength of these
rights determines the incentives to invest and to put time and energy into a
business, the ability to control collateral to obtain credit, and the types of risks
that people are able and willing to take.


Th is study addresses how the system of legal rights and access to justice
aff ects the strength of women’s economic rights and how and why they diff er
from those of men. Th e focus is the areas relevant to entrepreneurs.2


Securing equality of women’s economic rights has intrinsic value. Securing
economic rights for all—so that both women and men can fully participate in
the economy—has important instrumental benefi ts, too.


Business regulations stipulate the procedures for registering property or
businesses, enforcing contracts, and safeguarding investor or creditor rights.
With the exception of some labor laws, business regulations rarely have gender-
diff erentiated provisions. Th is does not mean that women have the same eco-
nomic rights as men, however.


A critical fi nding of this study is that other areas of the law, usually not
addressed in analyses of the business environment, play a determining role in
framing gender diff erences in economic rights. Th ese areas include family laws
governing marriage and divorce, inheritance laws, and land laws. It is these
laws, more than business regulations, that determine whether women and men
can make economic decisions in their own name and own, administer, transfer,
and inherit assets and property. It is precisely in these areas that gender diff er-
ences, including outright discrimination, are most apparent.


Two other factors are also important. First, these areas are the ones most
commonly subject to overlapping legal systems in Sub-Saharan Africa. Many
constitutions and statutes explicitly recognize the areas of marriage, inheritance,




20 EMPOWERING WOMEN


and rights over land as domains where formal, customary, or religious law
applies. Second, they are the areas that are oft en exempt from nondiscrimina-
tion provisions.


Th is study provides an overview of a new legal database of indicators of gender
equality for all 47 countries in Sub-Saharan Africa. Built for this study, the Women’s
Legal and Economic Empowerment Database for Africa (Women–LEED–Africa)
measures formal (de jure) provisions of property rights and legal capacity as pro-
tected in constitutions, international agreements, and statutes. It shows where non-
discrimination based on gender is provided (box 1.1) and where statutes provide
diff erent powers over economic decisions to husbands and wives. It also addresses
ways in which inheritance and land law provisions treat men and women diff er-
ently. Th e aim is to provide an overview of how and why the economic rights pro-
tected in family, inheritance, and land laws aff ect women’s economic opportunities.


Structure of the Book


Th e rest of this chapter discusses the reasons for looking at legal economic
rights and the relevant dimensions to be examined. It shows that diff erences
in property rights and legal capacity have a substantial impact on economic


BOX 1 . 1


Defi ning “Discrimination”
The vast majority of countries have ratifi ed the Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW), adopted by the United Nations
General Assembly in 1979. It has become the primary international vehicle for monitor-
ing and advocating for nondiscrimination against women.


The convention defi nes discrimination against women as “any distinction, exclusion
or restriction made on the basis of sex which has the effect or purpose of impairing or
nullifying the recognition, enjoyment or exercise by women, irrespective of their mari-
tal status, on a basis of equality of men and women, of human rights and fundamental
freedoms in the political, economic, social, cultural, civil or any other fi eld.” This defi -
nition covers both direct discrimination, in which explicit differences are made on the
basis of gender, and indirect discrimination, in which laws are gender neutral on their
face but not in their outcomes. The focus in this study is largely on direct discrimina-
tion, but references to indirect discrimination (such as land titling that provides for a
single owner on the title) are also made and should be kept in mind.


Source: http://www.un.org/womenwatch/daw/cedaw/cedaw.htm.




LAW, GENDER, AND THE BUSINESS ENVIRONMENT 21


opportunities, including rates of investment, labor force participation, and the
shift of the composition of entrepreneurs from the self-employed to employers.


Chapter 2 describes Women–LEED–Africa, which lists indicators of gender
diff erences in economic rights on the books. It briefl y discusses the issues the
indicators capture and describes some cross-country patterns.


Chapters 3–5 look more closely at the implications of these gender gaps in
legal rights. Chapter 3 analyzes how the presence of multiple sources of law can
undermine women’s economic rights, particularly if the constitutional principle
of nondiscrimination is not binding on all sources—as in the case of customary
law, for example. Th e chapter examines the role and importance of customary
law and how it intersects with statutory law. It uses case law to address how con-
tradictions between (and within) constitutions and statutes, as well as between
statutory and customary law, undermine the principles of nondiscrimination.


Chapter 4 examines how women experience these rights in practice, by
addressing shortcomings of legal systems and the administration of justice. It
provides a de facto counterpoint to the de jure principles articulated earlier.
It also addresses additional practical challenges that can make it diffi cult for
women to access justice.


A more interventionist agenda is needed to secure women’s full legal and
economic rights. Chapter 5 concludes by making recommendations for tackling
legal and regulatory obstacles while building on the positive developments that
help defi ne women’s legal status.


Importance of Economic Rights in Business Incentives


Two key dimensions of economic rights are property rights and contract rights.
Since the time of Adam Smith, the protection of property rights has been seen
as essential to capital accumulation and ultimately to economic growth and
poverty reduction. Th e protection of property rights can be understood not only
in the narrow sense of rights to own land but also more broadly to include the
ownership and control of assets. Stronger property rights increase confi dence
that one can benefi t from working and investing. With certain risks reduced, the
range of activities that can be profi table expands (World Bank 2004).


For businesses to fl ourish, their owners or managers need to invest, hire
employees, purchase materials, and sell goods or services. Most of these steps
involve commitments over time and with diff erent groups of people. Th ey involve
trust. If business dealings depend exclusively on trust, however, the circle of people
with whom entrepreneurs can engage is limited. With formal rules underlying
agreements, including how to redress breaches in trust, commerce can expand.
Entrepreneurs no longer need to rely on reputation and family or community links
to redress potential wrongs: formal mechanisms can enforce property rights.3




22 EMPOWERING WOMEN


Th e enforceability of contracts in the formal system allows for greater special-
ization. Entrepreneurs do not need to perform all the activities in their business:
they can subcontract or purchase some of them from other fi rms. Th is specializa-
tion can raise effi ciency dramatically, further expanding market size. It can also
lengthen commitments, making more investments attractive and encouraging
parties to extend credit to fi nance them. By setting transparent and enforceable
rules, the law facilitates transactions between third parties (North 1990).


Stronger property rights encourage people to invest their resources and
protect their investments. Th e opposite is also true: failure to protect property
rights limits opportunities. Hernando de Soto (1989) has been outspoken in
calling for greater protection of the property rights of poor people, arguing that
giving them title to their plots of land could be a critical step in strengthening
their ability to escape poverty. His work highlights that property rights are not
uniform and that failure to protect them for everyone in society can be costly.
Particularly where property is titled to individuals, it is important that women
receive title, too.


Yet even if formal property rights are not a panacea, informal systems of pro-
tecting rights can still be insuffi cient. Informal networks or communal property
rights can provide some measure of de facto security. But they can lead to even
greater disparities for women if they are not equal members of these networks
or communities.


Given the centrality of economic rights to business, diff erences in property
rights between men and women—in either their content or the ways in which
they are safeguarded in practice—are likely to have substantial eff ects on the
opportunities facing entrepreneurs of both genders. Th is study strengthens the
instrumental argument for closing gender gaps by examining how doing so
improves economic opportunities for women. Ensuring equal property rights
for women is particularly important in Sub-Saharan Africa given the high rates
of entrepreneurship (box 1.2).


Extent of Legal Protection of Women’s Economic Rights


Formal law ultimately defi nes formal economic rights in an economy. Much of
the content of such rights can be found in international law, constitutions, and
statutes.4 But for the law to be reliable, the legal system itself must be eff ective.
Th e strength of formal economic rights is thus determined by both the content
of formal laws and the eff ectiveness with which the formal legal system oper-
ates. Ambiguity in defi ning or enforcing these rights limits the use of property,
raises the costs of exchange, and can cause uncertainty aft er any contract.5


Practical constraints and customs can also shape the ability to exercise for-
mal economic rights. For this reason, the de jure indicators presented here do




LAW, GENDER, AND THE BUSINESS ENVIRONMENT 23


not capture the whole picture and may not always be an accurate refl ection of
de facto rights (as discussed in chapter 5).


Much of the population in Sub-Saharan Africa does not engage with the for-
mal legal system—or even has much knowledge of the legal protections it aff ords.
Particularly in areas that are emerging from confl ict or remain fragile, have lower
incomes and education, are rural, or retain strong customary traditions (or a com-
bination of these elements), people do not see the formal system as relevant for
securing economic rights. Local elders or chiefs and customary practices are more
likely to determine how disputes are resolved or property divided.6


Th e law is not the only factor that infl uences whether a person becomes
an entrepreneur or how an enterprise performs. Many others—including the
skills of the entrepreneur; the access to assets, technology, infrastructure, and
markets; and the extent of competition—are also important. Women and men
may diff er in how they spend their time. Th ey may also have diff erent interests
and abilities in undertaking economic activities at diff erent points in their
lives. Changing the law to protect equal economic rights between women and
men is not likely to bring about equal access to economic opportunities for
women and men—but diff erential legal protections will make such equality
virtually impossible.


Formal rules refl ect what should happen if the legal system is functioning
well. Th e incentives and protections the rules provide thus need to be examined.
Particularly as countries develop, the importance and reliance on the formal
legal system grows. Th e strength of de jure rights also provides a measure of the
potential to use the law to address discriminatory practices or behavior. And if
formal laws do not provide safeguards, an important avenue of redress is closed.


Th is study shows that even de jure rights are ambiguous and inconsistent,
undermining the equality of economic rights for women. Th e proposed recom-
mendations (chapter 5) involve legal reforms to address these issues. Beyond
that, more needs to be done to build awareness of women’s legal rights and
develop women’s capacity to exercise these rights. Th e many practical challenges
of helping women access the legal protections in the formal system must also
be overcome.


Main Areas of the Law for Women In Business


Th e most obvious starting point in an analysis of legal regimes is laws directly
governing business. Th e legal requirements for registering a business—and laws
and regulations governing licensing, contract enforcement, banking, bank-
ruptcy, labor, taxation, dispute resolution, and trade—are all natural candidates.
All are important for entrepreneurs (as shown, for example, in the World Bank’s
Doing Business reports).




BOX 1 .2


Importance of Property Rights for Economic Opportunity
High rates of labor force participation in agriculture and entrepreneurship reinforce the
importance of property rights and legal capacity in shaping economic opportunities for
large segments of the population. Box fi gure 1.2.1 shows the sectors in which eco-
nomically active men and women work in the world’s developing regions. It indicates
that Sub-Saharan Africa has the largest share of the population active in agriculture
as well as the highest rates of entrepreneurship (box fi gure 1.2.2), a refl ection of both
high labor force participation rates (stemming from the acute need for income) and


Figure B1.2.1 Types of Employment of Men and Women, by World Region


0


10


20


30


40


50


60


70


80


70


80


0


10


20


30


40


50


60


a. Where women work


b. Where men work


Sub-Saharan
Africa


East Asia and
Pacific


Europe and
Central Asia


Latin America
and the


Caribbean


Middle East
and


North Africa


South Asia


Sub-Saharan
Africa


East Asia and
Pacific


Europe and
Central Asia


Latin America
and the


Caribbean


Pe
rc


en
ta


ge
o


f l
ab


or
fo


rc
e


Pe
rc


en
ta


ge
o


f l
ab


or
fo


rc
e


Middle East
and


North Africa


South Asia


Employer Self-employed Wage earner
Unpaid worker Agriculture Not in labor force


Source: Hallward-Driemeier, forthcoming 2013.
Note: Figures are for most recent year available.


24




LAW, GENDER, AND THE BUSINESS ENVIRONMENT 25


Figure B1.2.2 Percentage of Labor Force That Is Self-Employed and Employs Other Workers,
by Gender and Region


a. Percentage of labor force that is self-employed


b. Percentage of labor force that employs other workers


Pe
rc


en
ta


ge
o


f l
ab


or
fo


rc
e


Pe
rc


en
ta


ge
o


f l
ab


or
fo


rc
e


Sub-Saharan
Africa


East Asia and
Pacific


Europe and
Central Asia


Latin America
and the


Caribbean


Middle East
and


North Africa


South Asia


Sub-Saharan
Africa


East Asia and
Pacific


Europe and
Central Asia


Latin America
and the


Caribbean


Middle East
and


North Africa


South Asia


Women Men


0


10


20


30


40


50


60


0


1


2


3


4


5


6


Source: Hallward-Driemeier, forthcoming 2013.
Note: Figures exclude agriculture. —Continued




26 EMPOWERING WOMEN


Th e letters of these laws seldom combine to spell out “gender discrimina-
tion.” Indeed, with the exception of some labor laws, almost all of these laws are
gender blind. But the impact in practice may not be gender neutral. Gender-
blind business regulations presuppose that the parties can enter into contracts,
move freely, access forums of economic exchange, and own property or control
assets in their own name.7 Th is is not always equally true for men and women.


Constitutional and statutory provisions do not treat women as a homo-
geneous group. In some cases, they treat men and women diff erently based
purely on gender. In other cases, they recognize a gender diff erence upon
marriage: it is most oft en upon marriage that women’s legal capacity and the
strength of their property rights weaken. Th e impact of “marriage” on women’s
rights is not necessarily restricted to the marriage itself—in many cases rights
vary even aft er a marriage has ended because of divorce or the death of a spouse.
An analysis of de jure rights must thus consider both gender and marital status.


Th e areas of the law that touch on roles within families thus play a deter-
mining role in women’s and men’s economic rights. Th ese areas include family,
inheritance, land, and labor laws, the provisions of which are sometimes shaped
by the principles in the country’s constitution or in international treaties the
government has ratifi ed.8


A country’s overarching legal principles are laid forth in its constitution or
in international agreements, which guide how the legal system should func-
tion and identifi es the values it strives to protect. Of particular importance for
women is the recognition of nondiscrimination based on gender. In assessing
the applicability of this principle, one must look at whether formal customary
law or statutory law prevails in the key areas of family, inheritance, land, and
labor laws or whether they are given formal exemption from the constitutional
principle of nondiscrimination.


Most assessments of the business environment do not consider family law,
even though it is central in defi ning whether women can participate in busi-
ness as equals. Family law is important to women entrepreneurs both for the
subject matter it covers and for how it treats women and men. On the subject


the relative scarcity of wage employment in the region. These trends are true for both
women and men.


With two-thirds of the region’s population in rural areas, land rights are thus critical
in determining income opportunities in Sub-Saharan Africa. Women’s rights to their
assets and income are central to their ability and incentive to operate and expand their
businesses. As many people work in rural areas and informally, customary law and
traditional forms of justice, rather than the formal legal system, may be more relevant.


BOX 1 .2 con t i nued




LAW, GENDER, AND THE BUSINESS ENVIRONMENT 27


matter, it is the body of law that defi nes the legal capacity of family members.
Without full legal capacity, one cannot enter into contracts or litigate indepen-
dently. Family law also defi nes who can control, own, or transfer assets. It can
also aff ect the mobility and freedom of association of diff erent individuals. It is
central in defi ning the legal capacity and property rights of family members, as
well as the incentives and ability to run a business. In its treatment of women
and men, family law is the area that most oft en allows diff erences by gender—
in constitutions, statutes, or both. As chapter 2 shows, family law, rather than
business law, is generally the area in which women’s economic rights diff er
most from men’s.


Inheritance laws, too, can diff er on the basis of gender. For example, a widow
may have only user rights during her lifetime to her deceased husband’s immov-
able property (which can cease on remarriage), whereas a widower may have
full rights to sell or otherwise deal with or bequeath property he inherits from
his deceased wife.


Land laws may also treat women’s rights diff erently from men’s. Because own-
ership of land can be important for the site of a business or for collateral, this
area, which can explicitly restrict women’s rights, warrants particular attention.


Among business regulations, labor laws are the most likely to include restric-
tions by gender. Th ey are oft en limited to certain industries, particular hours of
work, or activities during pregnancy. Many are well intentioned, keeping women’s
safety in mind, but they can still narrow opportunities and deny women choices.
Th is area is not subject to customary law or exemptions from nondiscrimination.


Nature of the Legal System


Legal systems diff er across Sub-Saharan Africa. Most follow either a common
law or civil law system, but many are hybrids of the two, making simple clas-
sifi cation diffi cult.9 Analysis must consider the systems’ features in assessing
the strength of women’s economic rights and what is required to strengthen
formal rights. Some of the features refl ect historical (including colonial) experi-
ence; others refl ect characteristics of the system itself. Precedent, the ability of
individuals to have standing to challenge the constitutionality of statutes, the
fundamental unit of the justice system, and “domestication” of international
conventions all play roles. Each feature is examined below.


Precedent
Th e role of precedent in a legal system has implications for assessing the
strength of rights on the books and how these rights may be changed. When
courts actively look to precedents in guiding decisions (primarily in common
law systems), precedents can have a substantial impact.10 Analyzing the strength
of a statute or provision in isolation may therefore be misleading.




28 EMPOWERING WOMEN


One example concerns how “silence” is interpreted. If rights are extended to
certain groups (such as religious or ethnic groups), does the principle apply to
other groups (such as women), even if that group is not explicitly identifi ed? In
a general provision of nondiscrimination, can the principle be interpreted to
imply nondiscrimination on the basis of gender?


Another example relates to the interpretation of a “fair distribution of
assets between spouses,” which could be seen as an even division or as one
based entirely on relative monetary contributions to acquiring the assets. In
many countries, in such instances judges’ rulings fi ll the interpretive gap in the
statutes, binding future decisions on the same subject. (See, for example, the
Echaria case in Kenya, described in chapter 3.)


Th e fact that judges have issued widely diff ering interpretations of similarly
worded statutes, even in the same country (as discussed in chapter 3), signals
a note of caution regarding the importance of precedents in some countries.
Precedents can be overruled. Some of the diff erent interpretations can refl ect
changes in the composition of judges in a court over time or evolutions in legal
philosophy or even a lack of access to earlier decisions. It is also true that some
judges are not above being infl uenced illicitly in their decisions.


Although shift ing precedents can make it harder to measure the impact of a
specifi c provision, they can also open another avenue for helping change how
provisions are applied. In every country, legislation can change the content of
the law. But where precedent plays a larger role, activists can help push for
more favorable rulings. Precedents can, however, also be set in ways that restrict
women’s rights further—and overturning them can make it harder to secure
future rulings that are more favorable to women. It is not that a greater role for
precedents inherently favors or disfavors women; it is that assessing how well
economic rights are protected in practice needs to consider precedents.


Th e role of precedents is not incorporated into the database. Instead, a sec-
tion in chapter 3 examines the role of precedents and how changing interpreta-
tions aff ect the way de jure rights are applied in practice. Th e database classifi es
de jure economic rights based solely on the language of the provisions, in order
to ensure that the analysis interprets the same language the same way across
countries, to avoid having to address countries in which the applicable case law
could not be found, and to prevent a country’s classifi cation from changing with
a new ruling on the same provision.


Standing
Countries provide diff erent rules on who has standing to challenge statutes or
regulations. It is beyond the scope of this study to look at all the provisions of
administrative law. Instead, the focus is on the ability of individuals to chal-
lenge the constitutionality of statutes. In most of the common law systems and
about half of the civil law countries, individual parties aff ected by a statute can




LAW, GENDER, AND THE BUSINESS ENVIRONMENT 29


challenge a statute.11 Th is provision broadens the way in which statutes and legal
precedents are set. Women who show that they are suffi ciently disadvantaged by
a statute because of gender can bring a suit challenging that statute and appeal-
ing to the principle of nondiscrimination. In some civil law countries, though,
only the executive or a majority of the legislature can challenge the constitution-
ality of statutes, leaving only a political channel for trying to change statutes and
the ways in which they are applied.


Fundamental Unit
Th e individual is generally the fundamental unit in formal legal systems. Indi-
viduals are seen as endowed with certain rights as individuals, which are the
same for women and men.


Some statutes and codes emphasize the household as the fundamental unit,
placing less emphasis on safeguarding the individual rights of its members. One
example is a head of household statute that give rights over the household to a
single person, the male head. Such a statute reduces women’s rights within the
household. In other cases, rights embedded in households can favor women,
as they do in communal property regimes. Larger community units, extended
families, and villages are also considered in the recognition of customary law.


Domestication of International Conventions
Most civil law countries are “monist” (as opposed to “dualist”) states: they do
not need any formal parliamentary procedure to domesticate the international
conventions they have ratifi ed for them to apply in their national territories.
Th e act of ratifying the international convention constitutes incorporation into
national law. Ratifi ed international conventions can be directly applied by a
judge, and directly invoked by citizens, just as if they were national law.


Most common law countries, by contrast, are dualist states: international
law has to be legislatively incorporated into national law.12 If a state accepts
a treaty but does not adapt its national law to conform to the treaty or does
not create a national law explicitly incorporating the treaty, it violates inter-
national law. One cannot claim that the treaty has become part of national
law, citizens cannot rely on it, and judges cannot apply it. Citizens of common
law systems may be able to bring declaratory proceedings to state that the
executive is obligated to “domesticate” international law, but they cannot force
the executive to implement international law. Because subsequent national
law can also override earlier national law enacting international agreements,
national legislation has to be constantly screened for its conformity with inter-
national law principles.


In a dualist state, the domestication process can be delayed, with fewer
mechanisms for enforcement. But if laws are changed and brought into line with
a convention, women’s rights are likely to be all the more strongly protected, as




30 EMPOWERING WOMEN


gender inequalities will have been addressed directly. In monist states, laws not
conforming to the international convention may well stay on the books.13


Impact of Rights on Economic Opportunities


Th e literature on the importance of property rights to growth, government
eff ectiveness, and investment is extensive.14 Aggregate cross-country data show
a positive association between the quality of institutions or property rights and
growth, though the causal relationship is hard to establish. Omitted variables
could account for both the quality of institutions and growth. Th ere may also
be reverse causation.


Finding appropriate instruments to resolve these issues is diffi cult (see Acemo-
glu, Johnson, and Robinson 2001; Johnson, McMillan, and Woodruff 2002; Glaeser
and others 2004; Rodrik, Subramanian, and Trebbi 2004; Acemoglu and Johnson
2005). Much of the recent literature instead focuses on microeconomic analyses,
generally in a single country that has either changed legal rights or grants diff er-
ential rights to various groups. Th is section presents examples of both approaches.


Strength of Land Rights
Empirical work suggests that increasing the resources controlled by women
raises agricultural productivity (Saito, Mekonnen, and Spurling 1994; Udry and
others 1995; Quisumbing 1996; Besley and Ghatak 2009) and helps reduce pov-
erty (World Bank 2001). Insecure property rights to land have multiple rami-
fi cations for agriculture and the organization of rural economic activity. Th ey
deter investment and can reduce borrowers’ ability to pledge land as collateral,
thereby tightening credit constraints. Ill-defi ned property rights to land can
inhibit land transactions (rentals or sales), causing potential gains from trade
to be forgone (Aryeetey and Udry 2010).


Box 1.3 illustrates this phenomenon in customary land rights by examining
the eff ect of contested land rights on investment and productivity in agricul-
ture in Akwapim, Ghana. It suggests that property rights must be understood
as embedded in a broader social context. People who hold powerful positions
in the local political hierarchy in Ghana have more secure tenure rights. As a
consequence, they invest more in land fertility and have substantially higher
output. Th e intensity of investments on diff erent plots cultivated by a given
individual corresponds to that individual’s security of tenure over those plots.
People in Ghana also vary their investment across plots based on the security
of their rights to the plot (Besley 1995).


Many countries have introduced formal titling programs.15 Some evaluations
of titling have documented an increase in agricultural productivity but only
weak growth in access to credit (Pande and Udry 2005). Th e lack of a substantial




LAW, GENDER, AND THE BUSINESS ENVIRONMENT 31


eff ect on access to credit may be attributable to two factors. First, creditors oft en
have only weak rights to foreclose on land titles (Field and Torero 2008). Sec-
ond, the availability of collateral is not necessarily the only constraint to access-
ing fi nance. A profi table idea and the ability to work in a reasonably hospitable
investment climate are also needed. Th us, expanding access to property that
may be pledged as collateral is important, but potentially only one of the steps
required to expand economic opportunities (Besley and Ghatak 2009).


A seminal study evaluating the impact of a titling program was carried out
in the slums of Peru (Field 2007). Being granted a title had little impact on
decisions to invest in the home or plot of land, but it did aff ect labor supply,
particularly for women. Securing the title freed members of the household from
having to remain on the plot to ensure claim over it.


Empowering Women Economically through Changes in Family Law
Because family law can determine legal capacity and the control of assets
within the family, changes in the law are likely to aff ect economic opportuni-
ties. Changes in outcomes come partly from shift s in intrahousehold bargaining
power, as evidence from the United States reveals (box 1.4).


Ethiopia, for example, changed its family law in 2000, raising the minimum
age of marriage for women, removing the ability of the husband to deny per-
mission for the wife to work outside the home, and requiring both spouses’
consent in administering marital property. Th e reform was initially rolled out
in three of Ethiopia’s nine regions and in two chartered cities. Two nationally
representative household surveys—one in 2000 just before the reform and one
fi ve years later—allow for a diff erence-in-diff erence estimation of the reform’s
impact. Five years later, women’s economic activities had shift ed signifi cantly.


BOX 1 .3


Women and Land in Ghana: Precarious Rights, Lower Yields
Complex and overlapping rights to land in Akwapim, Ghana, are associated with barri-
ers to investment in land fertility. People who are not central to the networks of social
and political power in these villages cannot be confident of maintaining their rights to
land while it is fallow. As a result, they allow their land to lie fallow for a shorter than
optimal period, and their farm productivity falls correspondingly.


This pattern has a strong gender dimension, because women are rarely in positions
of suffi cient political power to be confident of their land rights. They thus fallow their
plots less often than their husbands and achieve much lower yields.


Source: Goldstein and Udry 2008.




32 EMPOWERING WOMEN


In particular, women’s relative participation in occupations that require work
outside the home, full-time work, and higher skills rose more where the reform
had been enacted, aft er controlling for time and location eff ects (Hallward-
Driemeier and Gajigo 2010).


In 1994, two states in India, Karnataka and Maharashtra, changed their
inheritance laws, altering the incentive of families to invest in their daughters.
Deininger, Goyal, and Nagarajan (2010) analyze the eff ect of the changes to the
Hindu Succession Act, which gave equal rights to both genders in inheriting
property. Th ey fi nd that the new law increased families’ investment in their
daughters. Th e new provisions increased the chances of women inheriting land
(although they did not fully eliminate the gender diff erence), lift ed the marriage
age of girls, and raised girls’ educational attainment. Th eir results are consistent
with those of Roy (2008), who fi nds that the same changes had a signifi cant
eff ect on women’s autonomy.


Among patterns that are evident across countries, particularly interesting is
the impact of stronger property rights on entrepreneurship and opportunities
in entrepreneurship. One of the most important ways to expand opportunities
is to enable more entrepreneurs to move from self-employment to the ranks of
employers. Closing gender gaps in economic rights is an important way to do
so (box 1.5).


BOX 1 .4


Changing the Balance of Intrahousehold Power
in the United States
Divorce laws in the United States vary across states. These differences in law and varia-
tions in times of reform help isolate the impact of the legal change on the outcomes of
interest. In particular, changes in divorce laws that shifted the likely division of property
following divorce provide an opportunity to investigate the impact of marital property
regimes on rates of divorce, women’s labor supply, and even domestic violence.


Gray (1998) fi nds that the introduction of unilateral divorce laws led to an increase
in women’s labor supply when it increased the bargaining power of women. Steven-
son and Wolfers (2006) examine the effects of unilateral divorce laws on household
bargaining position. They fi nd that such laws signifi cantly reduced domestic violence
because they not only led to the dissolution of violent marriages but also helped lower
the prevalence of violence within existing marriages. In effect, by reducing the cost
of divorce, exit threats became credible. Focusing on only the rates of divorce would
underestimate the impact of the introduction of unilateral divorce because the divorce
law likely changed bargaining positions in existing marriages, too.




LAW, GENDER, AND THE BUSINESS ENVIRONMENT 33


BOX 1 .5


Stronger Economic Rights, Greater Opportunities
for Self-Employed Employers
Entrepreneurs include individuals who are self-employed and individuals who work for
themselves and employ others. Increasing the share of employers among entrepre-
neurs is one important way to expand opportunities.


The gender pattern between the two types of entrepreneurship is striking. Women
represent about 40 percent of the nonagricultural labor force in Sub-Saharan Africa,
50 percent of the self-employed, but only a little more than 25 percent of employers
(box fi gure 1.5.1). Factors that can help bridge this gap are thus important in helping
women entrepreneurs in particular.


In cross-country patterns, the share of self-employed individuals in the nonagricul-
tural labor force is inversely related to income: it is very high in low-income countries
and declines as country income rises. The same pattern does not hold for employers:
the share, which is small, changes little as country income rises (box fi gure 1.5.2).
Instead, the share of female employers depends on the extent of gender gaps in eco-
nomic rights (box fi gure 1.5.3). More men than women are employers, but the gap is
smaller where rights are stronger. More women are employers where they have stron-
ger rights to access, control assets, and can enter into contracts in their own name.


Figure B1.5.1 Women Are Active Entrepreneurs, Particularly in Lower-Income Countries,
But Largely Self-Employed


Pe
rc


en
ta


ge
o


f w
om


en
in


n
on


ag
ri


cu
lt


ur
al



la


bo
r


fo
rc


e
(b


y
em


pl
oy


m
en


t
ca


te
go


ry
)


6 7 8


GDP per capita (log)


9 10
0


20


40


60


80


Self-employed Employers Unpaid family workers Wage earners


Source: Based on data from household and labor force surveys in low- and middle-income countries.
Note: GDP = gross domestic product.


—Continued




34 EMPOWERING WOMEN


Figure B1.5.2 The Share of Female Employers Does Not Vary with National Income


Pe
rc


en
ta


ge
o


f w
om


en
in


n
on


ag
ri


cu
lt


ur
al


la
bo


r
fo


rc
e


(b
y


em
pl


oy
m


en
t


ca
te


go
ry


)


6 7 8


GDP per capita (log)


9 10


20


30


40


50


Self-employedIn labor force Employers Wage earners


Source: Based on data from household and labor force surveys in low- and middle-income countries.
Note: GDP = gross domestic product.


Figure B1.5.3 The Smaller the Gender Gap in Economic Rights, the Smaller the Gender Gap
in Entrepreneurs Who Employ Other Workers


Pe
rc


en
ta


ge
g


ap
b


et
w


ee
n


m
al


e
an


d
fe


m
al


e
em


pl
oy


er
s


Low income Middle income


Large gaps in women’s economic rights Limited gaps in women’s economic rights


0


25


50


75


100


125


Source: Hallward-Driemeier, forthcoming 2013.
Note: The bars exceed 100 percent if men are more than twice as likely as women to be employers.


—Continued


BOX 1 .5 con t i nued




LAW, GENDER, AND THE BUSINESS ENVIRONMENT 35


Conclusion


Th e areas of law that bring a gender dimension to property rights and legal
capacity are largely in family, inheritance, and land laws, areas that few policy
makers look at when considering how to improve the investment climate for
women. Th eir eff ect on who can access and control assets or enter into contracts
is central in determining the ability and incentives of individuals to run a busi-
ness. Labor laws can also shape entrepreneurial activities, indirectly, through
the relative attractiveness of employment, and potentially directly, by restricting
the types of activities that women entrepreneurs can perform. Analyses of varia-
tions in legal rights across countries and of legal reforms over time illustrate
how reforms in family, inheritance, and land laws can strengthen the ability of
women to pursue economic opportunities.


Notes
1. Other rights, such as civil or political rights, can certainly matter. Th e focus here is


on issues that most directly aff ect the ability to engage in business, primarily from a
gender perspective.


2. Th e implications for women employees enter in a few places, too, such as discus-
sions of labor laws and equal pay for work of equal value provisions. However, as
the emphasis here is on entrepreneurship, the coverage of labor laws is restricted to
laws that aff ect the choice of enterprise (industry, hours of operation) that women
could run. Equal pay for equal work indicators can aff ect the relative attractiveness
of entrepreneurship. Here they are taken largely as a summary indicator of the rec-
ognition of women’s economic rights more broadly.


3. See Haldar and Stiglitz (2008) for a more nuanced discussion of social capital. It is
not that informal networks cannot fund investments or facilitate transactions, it is
that they are likely to be more limited in scope if they need to be relationship based.
Well-connected individuals would no doubt be better positioned to receive fund-
ing through networks than through rule-based systems (though it is unclear which
system leads to a more effi cient allocation of resources).


An important policy implication from these results is that simply relying on income
will not be suffi cient to close gender gaps among self-employed employers. Indeed, as
chapter 2 demonstrates, gaps in economic rights in Sub-Saharan Africa are as preva-
lent in middle-income countries as in low-income countries. More needs to be done
to address legal reforms to enable more women entrepreneurs to move into the ranks
of employers.


The companion volume to this book, Enterprising Women: Expanding Opportunities
in Africa (Hallward-Driemeier, forthcoming 2013), explores in more detail the ways in
which gaps in economic rights affect the opportunities facing women entrepreneurs.)




36 EMPOWERING WOMEN


4. Additional sources of formal rules and laws (such as executive orders, administrative
law, and binding statements of policy) are not considered here. Th ey do not seem to
play a substantial role in issues of marital property or inheritance. Th ey may have
important eff ects on land. Given the challenge of fi nding even the relevant statutes,
it was beyond the scope of this study to collect all the relevant additional sources
of rules.


5. One school of thought argues that ambiguity is inherent in the defi nition of any
property right. See especially Kennedy (1981, 2002).


6. Whether the formal system is seen as a legitimate form of justice can be a signifi cant
issue discouraging the use of courts to settle disputes in some areas; see Chopra
(2008, 2009) for detailed examination in Kenya.


7. Women may also be more time constrained and limited in their ability to travel
to government offi ces, have less information about the procedures needed, or be
viewed as soft er targets for harassment by offi cials.


8. Other sources of law, such as criminal or welfare laws, may also aff ect women’s eco-
nomic opportunities. Th ey are beyond the scope of this study.


9. Cameroon, for example, formally recognizes both systems. Rwanda is switching
from civil to common law as it seeks to join the East African Community, and coun-
tries in southern Africa have hybrid systems.


10. In civil law countries, the role of judges is more strictly to apply the relevant codes,
not to interpret them or analyze a case in the context of broader precedents.


11. Th resholds to show “harm” vary across countries. Countries also diff er in terms of
whether such harm needs to be “direct” or “indirect.” In theory, if the threshold is
set high enough, it can restrict the ability of individual parties to bring suits.


12. Kenya is the most recent example of a common law country shift ing from a dualist
to a monist approach to international conventions under the terms of its new 2010
constitution.


13. Th is point should not be overstated. In Europe, for example, both monist and dualist
countries overhaul their laws at about the same pace.


14. Pande and Udry (2005) provide a review of the literature, focusing on microeconomic
analyses. Besley and Ghatak (2009) provide a synthesizing theoretical framework of
the relationship of property rights and economic outcomes (particularly investment)
and also discuss the existing evidence of the importance of property rights.


15. A challenge for women is that property is oft en titled under a single name—the male
head of household (see box 5.2 in chapter 5).


References
Acemoglu, Daron, and Simon Johnson. 2005. “Unbundling Institutions.” Journal of Polit-


ical Economy 113 (5): 949–95.
Acemoglu, Daron, Simon Johnson, and James A. Robinson. 2001. “Th e Colonial Ori-


gins of Comparative Development: An Empirical Investigation.” American Economic
Review 91 (5): 1369–401.


Aryeetey, Ernest, and Christopher Udry. 2010. “Creating Property Rights: Land Banks in
Ghana.” American Economic Review Papers and Proceedings 100 (2): 130–34.




LAW, GENDER, AND THE BUSINESS ENVIRONMENT 37


Besley, Timothy. 1995. “Property Rights and Investment Incentives: Th eory and Evi-
dence from Ghana.” Journal of Political Economy 103 (5): 903–37.


Besley, Timothy, and Maitreesh Ghatak. 2009. “Property Rights and Economic Develop-
ment.” CEPR Discussion Paper 7234, Centre for Economic Policy Research, London.


Chopra, Tanja. 2008. Building Informal Justice in Northern Kenya. Nairobi: Legal
Resources Foundation Trust.


———. 2009. “Justice Versus Peace in Northern Kenya.” Justice and Development Work-
ing Paper Series 2 (1), World Bank, Nairobi.


Deininger, Klaus, Aparajita Goyal, and Hari Nagarajan. 2010. “Inheritance Law Reform
and Women’s Access to Capital: Evidence from India’s Hindu Succession Act.” Policy
Research Working Paper 5338, World Bank, Washington, DC.


De Soto, Hernando. 1989. Th e Other Path: Th e Invisible Revolution in the Th ird World.
New York: Harper Collins.


Field, Erica. 2007. “Entitled to Work: Urban Property Rights and the Labor Supply in
Peru.” Quarterly Journal of Economics 122: 1561–602.


Field, Erica, and Maximo Torero. 2008. “Do Property Titles Increase Credit Access
Among the Urban Poor? Evidence from a Nationwide Titling Program.” Working
Paper, Department of Economics, Harvard University, Cambridge, MA.


Glaeser, Edward L., Rafael La Porta, Florencio Lopez-de-Silanes, and Andrei Shleifer.
2004. “Do Institutions Cause Growth?” Journal of Economic Growth 9 (3): 271–303.


Goldstein, Markus, and Christopher Udry. 2008. “Th e Profi ts of Power: Land Rights and
Agricultural Investment in Ghana.” Journal of Political Economy 116 (6): 981–1022.


Gray, Jeff rey S. 1998. “Divorce-Law Changes, Household Bargaining, and Married Wom-
en’s Labor Supply.” American Economic Review 88 (3): 628–42.


Haldar, Antara, and Joseph Stiglitz. 2008. “Th e Dialectics of Law and Development: Ana-
lyzing Formality and Informality.” Paper prepared for the China Task Force of the
Initiative for Policy Dialogue, New York, June.


Hallward-Driemeier, Mary. Forthcoming 2013. Enterprising Women: Expanding Oppor-
tunities in Africa. Washington, DC: World Bank.


Hallward-Driemeier, Mary, and Ousman Gajigo. 2010. “Strengthening Economic Rights
and Women’s Occupational Choice: Th e Impact of Reforming Ethiopia’s Family Law.”
Development Economics, World Bank, Washington, DC.


Johnson, Simon, John McMillan, and Christopher Woodruff . 2002. “Property Rights and
Finance.” American Economic Review 92 (5): 1335–56.


Kennedy, Duncan. 1981. “Cost-Benefi t Analysis of Entitlement Problems: A Critique.”
Stanford Law Review 33 (3): 387–445.


———. 2002. “Th e Critique of Rights in Critical Legal Studies.” In Left Legalism/Left Cri-
tique, ed. Wendy Brown and Janet Halley, 178–228. Durham, NC: Duke University
Press.


North, Douglass C. 1990. Institutions, Institutional Change and Economic Performance.
Cambridge: Cambridge University Press.




38 EMPOWERING WOMEN


Pande, Rohini, and Christopher Udry. 2005. “Institutions and Development: A View
from Below.” Economic Growth Center Discussion Paper 928, Yale University, New
Haven, CT.


Quisumbing, Agnes. 1996. “Male-Female Diff erences in Agricultural Productivity:
Methodological Issues and Empirical Evidence.” World Development 24 (10): 1579–95.


Rodrik, Dani, Arvind Subramanian, and Francesco Trebbi. 2004. “Institutions Rule: Th e
Primacy of Institutions Over Geography and Integration in Economic Development.”
Journal of Economic Growth 9 (2): 131–65.


Roy, Sanchari. 2008. “Female Empowerment through Inheritance Rights: Evidence from
India.” STICERD Working Paper, London School of Economics, London.


Saito, K. A., H. Mekonnen, and D. Spurling. 1994. “Raising Productivity of Women
Farmers in Sub-Saharan Africa.” Discussion Paper 230, World Bank, Washington, DC.


Stevenson, Betsey, and Justin Wolfers. 2006. “Bargaining in the Shadow of the Law:
Divorce Laws and Family Distress.” Quarterly Journal of Economics 121 (1): 267–88.


Udry, Christopher, John Hoddinott, Harold Alderman, and Lawrence Haddad. 1995.
“Gender Diff erentials in Farm Productivity: Implications for Household Effi ciency
and Agricultural Policy.” Food Policy 20 (5): 407–23.


World Bank. 2001. “Engendering Development: Th rough Gender Equality in Rights,
Resources and Voice.” Policy Research Report, World Bank, Washington, DC.


———. 2004. World Development Report 2005: A Better Investment Climate for Everyone.
Washington, DC: World Bank.




Chapter


39


2


Women’s Legal Rights
across the Region


Th is chapter documents the diff erences in the de jure economic rights of
women and men, using indicators of women’s legal rights according to the
offi cial sources of law in each country.1 Th e database documents which coun-
tries legally allow diff erential treatment of women and men in areas that most
directly aff ect their ability to pursue economic opportunities. It focuses on areas
that have fi rst-order eff ects on existing and potential businesspeople: property
rights (land and assets), legal capacity, and restrictions in labor laws.


The Women–LEED–Africa Database


Th e Women’s Legal and Economic Empowerment Database for Africa (Women–
LEED–Africa) database covers fi ve important sources of law:


• International treaties and conventions provide legal protections that are binding
on their signatories. Th e extent of their direct application domestically depends
partly on whether the country is a monist or dualist state (see chapter 1).


• Constitutions are the highest source of law in a country. Th ey lay out the
guiding principles for legal rights. Th e database focuses on provisions for
nondiscrimination based on gender and, as appropriate, provisions explicitly
relating to promoting gender equality.


• Th e statutes examined include family and civil codes, marital property laws,
inheritance laws, land laws, and labor laws. Th ese areas, rather than generic
business regulations, determine who has legal capacity, who can own and
dispose of property, and who has restricted labor opportunities.


• Customary law is recognized in constitutions, statutes, or both as a sepa-
rate—and oft en equal—source of law in many Sub-Saharan countries. Th is
recognition is sometimes restricted to certain areas. Th e database focuses on
how customary law aff ects legal capacity, property rights, and inheritance.2


• Religious law is recognized as a separate—and oft en equal—source of law in
many countries. In some cases, it is recognized as the primary source of law; in




40 EMPOWERING WOMEN


others, it is recognized as the applicable source of law for members of a particu-
lar religion, for certain prescribed issues, or both. Th e database focuses on how
religious or personal law aff ects legal capacity, property rights, and inheritance.


Structure of the Database
Th e database has two components. Th e legal records database lists the records
of the relevant provisions from the sources identifi ed above. It also provides
summary indicators on seven scoresheets, described below, to show whether
women and men are treated equally in a range of areas, by country. Th e database
does not assess how extensive the diff erences are; the scoresheets, presented in
appendix A, categorize countries simply as having or not having each indica-
tor; countries cannot therefore be ranked by indicator (ranking was not the
purpose).3 Th e correspondence between the sources of law and the scoresheets
is not one-to-one, because not all customary and religious laws are codifi ed.
Scoresheet 2 indicates whether these sources are offi cially recognized.4


Some care is needed in interpreting the indicators. First, not all indicators
report direct discrimination, and indicators that appear gender neutral on their
face may imply indirect discrimination. For example, indicators regarding the
recognition of customary law do not on their face indicate discrimination or
nondiscrimination. Th e content of customary law is not necessarily known, and
elements of customary law can be advantageous to women. However, in coun-
tries whose constitutions recognize customary law and exempt it from nondis-
crimination, women’s rights do not have the same protection as men’s.


Second, the fact that a country has a particular statute safeguarding women’s
rights may not necessarily be a positive sign. Inclusion of a gender-specifi c right
could be a sign that women do not otherwise enjoy the right.


Scoresheets 1–3 primarily document a country’s recognition of diff erent
sources of law that could aff ect protection of nondiscrimination on the basis of
gender. Th ese sources include the following:


• International treaties and conventions, including the Convention on the
Elimination of All Forms of Discrimination against Women, the Protocol to
the African Charter on Human and Peoples’ Rights on the Rights of Women
in Africa, and International Labour Organization (ILO) conventions on gen-
der equality in labor


• Constitutional protections against nondiscrimination on the basis of gender
and gender inequality


• Customary and religious laws and whether their recognition stems from pro-
visions in the constitution or statutes and whether they are explicitly exempt
from constitutional provisions for gender nondiscrimination.


Scoresheets 4–7 document whether the economic rights of men and women
are the same in legal capacity, property rights (including marital property and




WOMEN’S LEGAL RIGHTS ACROSS THE REGION 41


inheritance), land, and labor. Th ese four scoresheets provide indicators mainly
of statutes, but they also record when customary or religious laws are recog-
nized as the prevailing source of law in these areas.


Th e following seven subsections introduce the scoresheets. Th ey discuss the
main issues they aim to capture, list the indicators, and provide some overview
fi gures.


Countries are grouped based on four characteristics: income level (the World
Bank’s defi nition of low-income and middle-income countries, based on gross
domestic product [GDP] per capita levels); primary legal system (civil law and
common law)5; default marital property regime; and strength of the rule of law.
Much of the focus is on income, because there is an interest in knowing whether
the process of development itself can help close gender gaps.6


Data collection was challenging. Data came from online sources for some
countries. Th e U.S. Library of Congress was particularly important for laws
unavailable online. Some systems of laws (such as information on the status of
ratifi cation of international instruments, constitutions, and labor laws) are well
covered, and information is readily available. In contrast, information gaps on
the recognition of customary law and family and land laws were wide, and no
prior systematic attempts had been made to develop a comprehensive database
for the whole region.


“Not found” is recorded to distinguish countries in which information was
unavailable from countries in which a provision is known not to apply. In addi-
tion, many customary laws are rarely codifi ed, making it especially diffi cult to
determine precisely what these laws say and assess their possible impact.


Compilation of the database benefi ted from several concurrent initiatives,
including the Gender Law Library and its accompanying Women, Business, and
the Law publication (see appendix B) and the International Finance Corpora-
tion’s Women in Business Program, which addresses the gender dimensions of
investment climate reform (Simavi, Manuel, and Blackden 2010).


Principal Findings from the Database
Th ree key messages emerge from the database:
• All countries recognize the principle of nondiscrimination in their constitu-


tions, in the treaties they have signed, or both. Even where nondiscrimina-
tion is recognized as a guiding principle of law, however, legal exceptions are
widespread—sometimes even in constitutions themselves, some of which
exempt customary law from the principle of nondiscrimination. And many
countries still discriminate in their statutes.


• Many discriminatory provisions apply not to women as women but to
women as married women. From a legal standpoint, marriage changes the
status and rights of women, sometimes radically, oft en conferring legal
capacities and responsibilities on husbands and removing them from wives.




42 EMPOWERING WOMEN


Th is change applies particularly to property regimes and rights during and
aft er marriage and to rules aff ecting women’s economic capacity and deci-
sion making in marriage.


• Th e treatment of women’s economic rights is not closely correlated with a
country’s income. Raising national income by itself is therefore unlikely to
improve women’s legal and economic rights. More interventionist reforms
will probably be needed.


Scoresheet 1: Ratifi cation of International
Treaties and Conventions


Issues Captured
Th e indicators in scoresheet 1 report whether countries have ratifi ed the highest-
profi le international agreements that aim to provide for nondiscrimination based
on gender. A distinction needs to be made between signing and ratifying a treaty.
Signing signals the intent of the president or prime minister to adhere to the treaty.
But until it is ratifi ed by the legislature, a treaty does not have the force of law.


Th e primary global convention is the Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW) (box 2.1; see box 1.1 in
chapter 1 for its defi nition of discrimination). Sub-Saharan Africa has its own
equivalent instrument, the Protocol to the African Charter on Human and Peo-
ples’ Rights on the Rights of Women in Africa (box 2.2).


On the more targeted issues related to labor, ILO conventions set out inter-
national standards governing employment and working conditions. Th e data-
base covers four key conventions. Th e scoresheet also records whether ratifi ed
international conventions have the force of law domestically.7


Indicators
Scoresheet 1 includes the following indicators:


• Whether a country has ratifi ed CEDAW
• Whether a country has ratifi ed the Protocol to the African Charter on


Human and Peoples’ Rights on the Rights of Women in Africa
• Whether a country has ratifi ed the following ILO conventions:


° C100 Equal Remuneration Convention, 1951, which obligates state par-
ties to guarantee equal remuneration for men and women for work of
equal value through national laws or regulations


° C111 Discrimination (Employment and Occupation) Convention, 1958,
which requires states to guarantee equality of opportunity and treatment
in employment and occupation, with a view to eliminating discrimina-
tion in that area




WOMEN’S LEGAL RIGHTS ACROSS THE REGION 43


° C171 Night Work Convention, 1990, which requires states to address the
labor rights of women in regard to night work, particularly during preg-
nancy and aft er childbirth


° C183 Maternity Protection Convention, 2000, which reinforces labor
rights for pregnant and breastfeeding women


• Whether the ratifi ed international convention has the force of law domesti-
cally (that is, whether it is a monist or dualist state).


Patterns across Countries
All but 2 of the 47 countries (Somalia and Sudan) have ratifi ed CEDAW.8 As
virtually all the civil law countries are monist, the provisions in CEDAW have


BOX 2 .1


The Convention on the Elimination of All Forms
of Discrimination against Women
The Convention on the Elimination of all forms of Discrimination against Women
(CEDAW)—adopted in 1979 by the United Nations General Assembly—defi ned what
constitutes discrimination against women and set up an agenda for national action to
end it. It is often described as an international bill of rights for women. By ratifying the
convention, countries commit to ending discrimination against women in all forms.
Ratifi cation represents a commitment to the following actions:


• Abolishment of all discriminatory laws and adoption of appropriate laws prohibit-
ing discrimination against women in order to incorporate the principle of equality
between men and women in their legal systems


• Establishment of tribunals and other public institutions to ensure the effective pro-
tection of women against discrimination


• Elimination of all acts of discrimination against women by persons, organizations,
and enterprises


Article 11 lays out protections in employment, including gender equality in the right
to work, the choice of profession, equal pay, and rights to social protections. Article
14 addresses the challenges of women in rural areas for income opportunities and for
sharing the benefi ts of rural development. Articles 15 and 16 set out areas that fall
under family law. Article 15 mandates the same personal rights for husband and wife,
including the right to choose a family name, a profession, and an occupation. Article
16 mandates the same rights for both spouses with respect to the ownership, acquisi-
tion, management, administration, enjoyment, and disposition of property, whether
free of charge or for a consideration.


Source: CEDAW (http://www.un.org/womenwatch/daw/cedaw/cedaw.htm).




44 EMPOWERING WOMEN


the force of law domestically. All of the common law countries in Sub-Saharan
Africa except Sudan have ratifi ed CEDAW (fi gure 2.1), but as CEDAW reports
indicate, the process of domestication is incomplete in several countries.9 More
than half the countries have ratifi ed the Protocol to the African Charter on
Human and Peoples’ Rights on the Rights of Women in Africa, with a higher
proportion among common law countries.


All countries except Liberia and Somalia are signatories to ILO Convention
100 (on equal pay for work of equal value), and all countries are signatories to
Convention 111 (on the equal right to work). Twenty-six countries are signato-
ries to ILO Conventions 4, 41, and 89, which restrict night work for all women
in certain industries, and Madagascar has ratifi ed the 1990 Protocol to Conven-
tion 89, which obliges states to provide alternatives to night work for women
during pregnancy and childbirth.10 Only Ethiopia has ratifi ed Convention 183
(on maternity protection).


BOX 2 .2


The Protocol to the African Charter on Human and Peoples’
Rights on the Rights of Women in Africa
The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of
Women in Africa requires African governments to eliminate all forms of discrimination
and violence against women in Africa and to promote women’s equality. It also commits
African governments to include these fundamental principles in their national constitu-
tions and other legislative instruments, if they have not already done so, and to ensure
their effective implementation. It requires states to eliminate all forms of discrimination
against women through legislative, institutional, and other measures and enjoins states
to eliminate practices based on the idea of inferiority of either gender, stereotyped roles
for men and women, or other harmful cultural and traditional practices. It also obligates
states to integrate a gender perspective in their policy decisions, legislation, develop-
ment plans, and activities and to ensure women’s overall well-being.


More specifi cally, the protocol requires states to guarantee women’s property rights
during marriage and after its dissolution through death or divorce. States are obliged
to guarantee women’s labor rights, including equality in remuneration, the right to
choose a profession, and protection when pregnant. The protocol also requires states
to ensure that women can access credit.


The protocol was adopted July 11, 2003, at the second summit of the African
Union in Maputo, Mozambique. It came into force November 25, 2005, 30 days after
ratifi cation by 15 countries. As of January 1, 2011, 46 countries had signed the proto-
col and 28 had ratifi ed it.


Source: http://www.africa-union.org/root/au/Documents/Treaties/treaties.htm.




W
O


M
EN


’S LEG
A


L RIG
H


TS A
C


RO
SS TH


E REG
IO


N



45


Figure 2.1 Most Countries Have Ratified International Conventions on Women’s Rights
P


e


r


c


e


n


t


a


g


e




o


f




c


o


u


n


t


r


i


e


s




i


n


S


u


b


-


S


a


h


a


r


a


n




A


f


r


i


c


a


Convention on
the Elimination of All


Forms of Discrimination
against Women


Protocol to the
African Charter of


Human and Peoples’
Rights on the Rights


of Women in Africa


ILO Convention 100
(equal pay for


work of equal
value)


ILO Convention 111
(nondiscrimination


in employment)


ILO Conventions
4, 41, 89, and


1990 Protocol
(night work)


ILO Convention 183
(maternity


protections)


Not ratifiedRatified


0


25


50


75


100


Source: Women–LEED–Africa.
Note: ILO = International Labour Organization.




46 EMPOWERING WOMEN


Most civil law countries and a quarter of common law countries are monist
states (fi gure 2.2). For the majority of common law countries and two civil law
countries, however, domestication is still required.


Scoresheet 2: Gender Provisions in Constitutions


Issues Captured
Scoresheet 2 examines whether constitutions include a clause on nondiscrimi-
nation or equality before the law. As constitutions provide the guiding princi-
ples for the legal system, the extent to which they provide for nondiscrimination
based on gender is critical for women’s economic rights.


Such a nondiscrimination clause does not mean that all statutes comply
with it. Indeed, the importance of subsequent scoresheets is to discover the
rate of noncompliance. For example, Cameroon still gives men the right to
administer all marital property without the consent of their wives, and Swa-
ziland’s statutes recognize women as legal minors. Strengthening the consti-
tution is an important fi rst step, but ensuring that it prevails over statutes is
critical to give it force.


An even stronger provision is one enshrining the principal of gender equal-
ity. Th is provision implies a higher standard. It not only bans discrimination, it
also provides grounds for positive action to address gender equality.


Figure 2.2 For Most Civil Law Countries and a Quarter of Common Law Countries, Being a
Monist State Automatically Gives International Conventions the Force of Law Domestically


Pe
rc


en
ta


ge
o


f c
ou


nt
ri


es
in


Su
b-


Sa
ha


ra
n


A
fr


ic
a


Civil Common


DualistMonist Not found


0


25


50


75


100


Source: Women–LEED–Africa.
Note: In a monist state, a ratified international convention has the force of law domestically; in a dualist state,
domestic laws need to be reviewed and, if necessary, amended to comply with the ratified convention.




WOMEN’S LEGAL RIGHTS ACROSS THE REGION 47


Th e database captures whether a constitution includes a safeguard on indi-
vidual property ownership, a general right to ownership for all citizens implic-
itly providing women (as well as men) with the right to own property. It also
records whether the constitution explicitly guarantees women the right to own
property. A provision mandating equal rights to own property reinforces the
fact that women’s ownership rights are equal to those of men—although it also
can raise questions as to why such a gender-specifi c provision is necessary.


Th e database records whether countries recognize the principle of the equal
right to work and the right to equal pay, reinforcing the standards in ILO Conven-
tions 100 and 111. It also records whether individuals can directly appeal to the
constitution to challenge a law or legal code. At issue is whether individuals, and
not just the executive branch, have “standing” to challenge the constitutionality
of a statute. Th e thresholds for showing standing—that is, demonstrating that a
plaintiff has been adversely aff ected by a statute and showing the extent of harm
in order to establish that he or she is entitled to bring a legal challenge—vary by
country; if set high enough, they can choke off this avenue of redress.11 Th e indi-
cator records provisions in the constitution as well as statutory provisions (if they
exist). Although a political process is usually available to engage with legislators
to change laws, giving individuals standing to challenge the constitutionality of
statutes provides them with another judicial avenue for overturning legislation.


Indicators
Scoresheet 2 includes the following indicators:


• Whether there is constitutional recognition of nondiscrimination based on
gender, marital status, or both


• Whether there is constitutional provision for gender equality
• Whether there is constitutional guarantee of ownership of property
• Whether there is constitutional guarantee of women’s right to own property


or explicit guarantee of gender equality in ownership of property
• Whether there is constitutional protection for the equal right to work and


the right to equal pay
• Whether individuals or only the executive branch can challenge the consti-


tutionality of statutes


Patterns across Countries
Th e constitutions of every country in the region mention nondiscrimination
based on gender or equality before the law. Many constitutions also contain the
stronger provision of gender equality (fi gure 2.3). Th is provision is particularly
common in low-income countries: four of the fi ve countries that do not have
a gender equality clause are middle-income countries (Botswana, Cape Verde,
Ghana, and Mauritius). Liberia is the one low-income country without this




48 EMPOWERING WOMEN


provision. But this provision does not lead to fewer sources of gaps in women’s
economic rights: 22 countries with head-of-household statutes (statutes that
give husbands rights to wives’ property or economic activities) also have gender
equality as a constitutional principle. Only Cape Verde has head-of-household
provisions but no gender equality provision.12


Almost 80 percent of countries provide general protection of rights to prop-
erty ownership (fi gure 2.4). Eight countries (Ethiopia, Guinea-Bissau, Kenya,
Liberia, Malawi, Senegal, Swaziland, and Zimbabwe) go farther, explicitly
providing that women have a right to own property. Th is explicit recognition
could indicate stronger protection of women’s property rights. Alternatively,
the need for the law could refl ect women’s weaker status. Swaziland is the only
middle-income country to have this provision, but it also keeps on the books
a Deeds Registry Act that forbids married women from owning land in their
own name—a reminder of the importance of both examining legal statutes
and reviewing the statutes behind progressive principles in new constitutions
to ensure consistent application of the law.13 Th e constitutions of 31 of the 47
countries recognize the equal right to work and to equal pay for work of equal
value, reinforcing the principle of ILO Conventions 100 and 111.


In terms of having standing to challenge the constitutionality of statutes,
there is little variation by income (fi gure 2.5). Th ere are closer ties to the type of
legal system. Common law countries allow individuals to challenge the consti-
tutionality of statutes. In contrast, in almost a third of civil law countries, only


Figure 2.3 All Countries Recognize the Principle of Nondiscrimination


Pe
rc


en
ta


ge
o


f c
ou


nt
ri


es
in


Su
b-


Sa
ha


ra
n


A
fr


ic
a


Low income Middle income


Nondiscrimination Specific provision for gender equality


Low income Middle income


NoYes


0


25


50


75


100


Source: Women–LEED–Africa.




WOMEN’S LEGAL RIGHTS ACROSS THE REGION 49


Figure 2.4 Constitutions Recognizing Property Ownership, Equal Right to Work,
and Right to Equal Pay


Pe
rc


en
ta


ge
o


f c
ou


nt
ri


es
in


Su
b-


Sa
ha


ra
n


A
fr


ic
a


Low
income


Middle
income


Guarantee of
property ownership


Gender equality in
property ownership


Low
income


Middle
income


Equal rights to work
and equal pay


Low
income


Middle
income


Not foundNoYes


0


25


50


75


100


Source: Women–LEED–Africa.


Figure 2.5 Standing to Challenge the Constitutionality of Statutes Varies across Countries


Pe
rc


en
ta


ge
o


f c
ou


nt
ri


es
in


Su
b-


Sa
ha


ra
n


A
fr


ic
a


Low income Middle income


Individuals Executive branch only


Low income Middle income
0


25


50


75


100


Not foundNoYes


Source: Women–LEED–Africa.




50 EMPOWERING WOMEN


the executive branch can fi le such challenges. (Th is indicator is based solely on
provisions in the constitution, not on statutes, which may also give individuals
the right to challenge the constitutionality of laws.)


Scoresheet 3: Recognition of Customary and Religious Law


Many Sub-Saharan African countries have multiple sources of law, as discussed
in chapter 3. Customary law, religious law, or both are recognized as formal—
and oft en equal—sources of law in many constitutions and some statutes.
Indeed, customary law has a central place in African countries’ legal systems
(box 2.3)—oft en to the detriment of women.


BOX 2 .3


The Central Place of Customary Law in Africa
Since independence, the legal systems in Africa have adopted three main approaches
to customary law.


• English-speaking countries have retained much of the dual legal structures created
during colonial rule while attempting to reform and adapt customary law to notions
of British law.


• French- and Portuguese-speaking countries have pursued an integrationist course
by trying to absorb customary law into the general law, codifying elements of cus-
tomary law in statutes.


• Some countries, such as Ethiopia, have adopted measures to abolish particular
aspects of customary law through legislation.


No African country proscribes or totally disregards customary law. It continues to be
recognized and enforced, to different degrees depending on the jurisdiction. Many
countries’ constitutions and statutes recognize customary law as a major source
of law, to be determined and applied in legal proceedings when it is raised by the
parties.


Customary law can be defi ned in various ways. Nhlapo (1995, p. 53) defi nes it as “a
customs based system whose legitimacy lies largely in its claims to a direct link with the
past and with tradition.” Henrysson and Joireman (2009) defi ne it as a body of rules
governing personal status, communal resources, and local organization.


Three characteristics of customary law make it diffi cult to determine what women’s
economic rights are: it is rarely codifi ed; it is not uniform across communities, with
differences stemming from language, proximity, origin, history, social structure, and
economy; and it is dynamic, with rules evolving to refl ect changing social and eco-
nomic conditions.




WOMEN’S LEGAL RIGHTS ACROSS THE REGION 51


Although the content of customary law diff ers from that of religious law,
the laws share several features. Neither is always codifi ed (though some coun-
tries have codifi ed religious law, making it easier to determine its content), and
the laws generally apply only to certain issues, subpopulations, or localities
(religious law is more likely to be applied uniformly across the country to the
relevant subpopulation). Some countries recognize religious law as a type of
customary law. Other countries recognize it as the law of the land. Scoresheet
3 presents indicators in three areas: customary law in constitutions, religious
law in constitutions, and customary and religious law in statutes. Th e indica-
tors examine whether constitutions or statutes formally recognize customary or
religious law as a source of law and whether the law is bound by (or exempted
from) the provision of nondiscrimination.


Customary law is infl uenced by many sources, including Christian and Islamic val-
ues, central government administrative policy, pronouncements of superior courts of
record, customary court records (where available), and district council and chiefdom
bylaws (Kane, Oloka-Onyango, and Tejan-Cole 2005; Joireman 2008). It is binding on
its members, and its rules include local sanctions for breaching them, making it all the
more important to consider its role in determining women’s rights locally.


Some countries’ constitutions recognize customary law as a source of law; many
countries’ statutes, marriage laws, and inheritance practices recognize customary law.
Several countries have recognized customary courts formally; some other countries
allow them to operate parallel to the formal system. Togo Ordinance No. 78-35 of
1978, for example, sets out areas in which customary law is applicable, such as the
capacity to contract, marry, divorce, and inherit.


Before colonization, customary law was the principal source of law in Africa. The
colonists introduced their own laws and courts, creating a dual system in which Western-
type courts presided over by expatriate magistrates and judges had jurisdiction in specifi c
areas of criminal and civil matters. In colonies such as Botswana, Ghana, Malawi, Nigeria,
South Africa, and Zimbabwe, customary courts were established, headed by traditional
chiefs or local elders. During the colonial era, these courts, which remain in place today,
had jurisdiction only over Africans and mainly applied local customary law.


Creating customary courts did not do away with precolonial traditional adjudica-
tion systems. The statutory customary courts only formalized and entrenched selected
aspects of these systems that suited the purposes of the colonial administrations.
Though generally not offi cially recognized, these traditional systems continued to be
used by the parties as they wished. In countries such as Kenya and Tanzania, specifi c
customary courts were not created. The formal judicial system adjudicated over cus-
tomary law, with informal customary courts operating in villages.


Source: Kuruk 2002.




52 EMPOWERING WOMEN


Customary Law in Constitutions
Issues captured. Th e recognition of customary law and the consequent
overlapping sources of law complicate the analysis of women’s de jure eco-
nomic rights. As customary law does not always hold nondiscrimination
based on gender as one of its core values, recognizing it as a source of law
can lead to diff erential treatment of women and men. Moreover, many coun-
tries’ constitutions explicitly exempt customary law from the principle of
nondiscrimination.


Customary law is not inherently discriminatory. Th e content of customary
law varies, geographically and temporally (the general lack of codifi cation of
the law makes it hard to capture in the database). Th e fi ndings from scoresheet
3 (on customary law and customary marriages and inheritance practices) are
not that such law and practices are discriminatory but that they could be. And
if they are, there is oft en little recourse.


Indicators. Scoresheet 3 includes the following indicators:
• Whether the constitution allows for discrimination based on customary law


only to the extent that such law is consistent with other higher principles and
explicitly recognizes nondiscrimination as a higher principle


• Whether the constitution recognizes customary law and explicitly allows for
gender discrimination in areas where customary law prevails


• Whether the constitution is silent on customary law


Patterns across countries. Only about half of the 47 countries’ constitutions
formally recognize customary law as a source of law (fi gure 2.6). Patterns are
similar in low- and middle-income countries.


When countries do not recognize customary law in their constitutions, they
do so implicitly in statutes, particularly for marriage or inheritance (discussed
below). What varies across countries is the extent to which they place con-
straints on customary law in upholding nondiscrimination.


Among countries that formally recognize customary law in their constitu-
tions, a third exempt it from the nondiscrimination provision. Th e proportion
is higher among middle-income than low-income countries. As most countries
recognize customary law in marriage, property, and inheritance, such exemp-
tion strikes at the heart of women’s ability to control assets and pursue economic
opportunities.


Th e recognition of customary law and its formal exemption from provisions
of nondiscrimination can set up potential contradictions in the constitution
itself. Five countries—Th e Gambia, Lesotho, Sierra Leone, Zambia, and Zim-
babwe—recognize gender equality (not just nondiscrimination) as a constitu-
tional principle but exempt customary law from nondiscrimination. Zimbabwe




WOMEN’S LEGAL RIGHTS ACROSS THE REGION 53


also recognizes women’s right to own property but recognizes customary law as
prevailing in many property-related matters.


Legal tradition is more closely correlated with the treatment of customary
law than is a country’s income (fi gure 2.7). Th e constitutions of all but two com-
mon law countries recognize customary law as a source of law, whereas only a
third of civil law countries do so.


Religious Law in Constitutions
Issues captured. Religious laws, such as Islamic Sharia (box 2.4) and Hindu
personal laws, form part of Sub-Saharan Africa’s many legal systems.14 As with
customary law, some constitutions and statutes recognize religious laws, to
varying degrees. Although Christianity does not have a specifi c law relating to
personal law per se, its infl uence can still be seen in many constitutional provi-
sions and statutes.


In many countries, Sharia laws are not codifi ed and are thus left open to
misinterpretation, lack of observance, and confl icting decisions. Ignorance and
misconceptions can also lead to injustice, especially where basic rights accorded


Figure 2.6 Some Countries Recognize Customary Law and Allow It to Discriminate
against Women


Pe
rc


en
ta


ge
o


f c
ou


nt
ri


es
in


Su
b-


Sa
ha


ra
n


A
fr


ic
a


Low income Middle income


Recognize customary law and exempt it from nondiscrimination based on gender
Do not recognize customary law


Recognize customary law and limit its ability to discriminate based on gender


0


25


50


75


100


Source: Women–LEED–Africa.




54 EMPOWERING WOMEN


under Sharia are not observed. But codifying Sharia can “freeze” the law and
deprive it of fl exibility.


Sharia law places obligations on parties. But as in all systems of laws, the exis-
tence of obligations does not ensure their enforcement. De facto practice can
leave widows in a vulnerable position if the family refuses to support them or
denies them their share of inheritance. Divorced women are also left potentially
vulnerable, with limited rights to maintenance and lack of family support. In the
Mossi Muslim communities of Burkina Faso and some Muslim communities
of Senegal, for example, the birth family relinquishes responsibility for women
once they are married. Moreover, patrilineal Mossi customs override Muslim
norms of daughters’ rights to inherit land. At most, daughters are given tempo-
rary user rights to their father’s lands (Platteau and others 2000).


In recognizing religious law, only fi ve low-income countries (Ethiopia,
Th e Gambia, Kenya, Malawi, and Uganda) and two middle-income countries
(Botswana and South Africa) place any limits on whether it can discriminate.
(Th e indicator refl ects only whether religious law is explicitly recognized as
a source of law in some areas or for some populations.) Even countries that
require that customary law be subject to nondiscrimination provisions do not
always require that religious law be so (see fi gure 2.10).


Figure 2.7 Constitutions Recognizing Customary Law, by Type of Legal Tradition


Pe
rc


en
ta


ge
o


f c
ou


nt
ri


es
in


Su
b-


Sa
ha


ra
n


A
fr


ic
a


Civil law Common law


Do not recognize in constitution, but recognize in statutes
Do not recognize customary law as a formal source of law


Recognize in constitution; nondiscrimination provision applies
Recognize in constitution and exempt from nondiscrimination


0


25


50


75


100


Source: Women–LEED–Africa.




WOMEN’S LEGAL RIGHTS ACROSS THE REGION 55


BOX 2 .4


How Does Sharia Treat Women’s Property?
The provisions of Sharia vary by region, by historical and political context, and by the
customary traditions of the community. In Mauritania and Sudan, Sharia is constitu-
tionally recognized as the prevailing source of law; in Somalia it can rank above the
constitution. It is recognized as a personal law by the constitution of Nigeria and is
applicable to the Muslim population in some states in the country’s north. In Kenya
and Uganda, the constitution recognizes Sharia provisions on personal status, mar-
riage, divorce, and inheritance. Both countries have established religious (kadhi) courts,
which adjudicate on matters such as marriage and personal status where all parties are
Muslim. State courts in Tanzania can refer to Sharia in personal disputes in which all
parties are Muslim.


In countries where a large proportion of the population is Muslim, such as Chad,
Comoros, Mali, Mauritania, Mauritius, and Senegal, religion has a greater impact on
statutory laws. Senegal’s family code is largely ignored in rural areas but is used in cases
that make it to urban courts. Between 1974 and 1985, all but 452 of 4,607 judgments
arising from inheritance cases were decided according to Sharia (Sowsidibe 1994). In
Mali, which has no civil code governing inheritance, cases are usually decided based on
the traditional or religious law that applies to the deceased (Wing 2009).


Many provisions of Sharia protect women’s rights to property. All women—married
and unmarried—are entitled to own property in their own right (Diara and Monimart
2006); to work outside the home; and to keep any income or profi ts they derive from
their personal property, which they can deal with as they wish. Sharia accords women
full legal capacity to enter into civil transactions. It also has a bilateral inheritance sys-
tem under which both men and women inherit. Mirath (inheritance laws under Sharia)
allows for inheritance by the female relatives of the deceased, including the mother,
sisters, wives, and daughters. A widow is entitled to remain in the marital home and be
maintained there for a year after her husband’s death.


Where there are sons and daughters, the daughters’ share of the inheritance is
generally half the brothers’, which is potentially discriminatory. The historical reason for
this tradition, however, was that male family members were usually under an obliga-
tion to support the family’s female members. When these social obligations are eroded
and society’s expectations change, injustice can set in.


Sharia laws are not a fi xed code; their interpretation varies according to differ-
ent historical schools of jurisprudence and social, geographic, and cultural contexts.
Schools of jurisprudence differ regarding who is able to negotiate the marriage
contract, for example. One school that historically empowered women as their own
negotiators emerged from a cosmopolitan multiethnic environment rather than from a
more traditional tribal society. Lack of awareness, cultural reluctance, and absence of
political will to refer to provisions of Sharia that promote parity may result in failure to
apply them in practice.




56 EMPOWERING WOMEN


Indicators. Scoresheet 3 includes the following indicators:
• Whether the constitution recognizes religious law only to the extent that


such law is consistent with the bill of rights and whether it explicitly recog-
nizes nondiscrimination as a higher principle


• Whether the constitution recognizes religious law and does not place limits
on the law on discrimination based on gender


Patterns across countries. A third of Sub-Saharan countries offi cially recog-
nize religious law as prevailing for some proportion of the population, in certain
areas of the law, or both. Almost half of these countries do not limit religious
law from potentially discriminating on the basis of gender (fi gure 2.8).


Customary and Religious Law in Statutes
Issues covered. Th e indicators in this subsection focus on statutes that explic-
itly recognize customary law as a source of law. Statutes recognizing certain
customary or religious practices as offi cial are discussed under scoresheet 5.


Indicators. Scoresheet 3 includes the following indicators:
• Explicit recognition of customary law as a source of law (judicature acts, for


example, which defi ne jurisdiction of each layer of court within a legal sys-
tem and the applicable sources of law).


Figure 2.8 Constitutions Recognizing Religious Law


Pe
rc


en
ta


ge
o


f c
ou


nt
ri


es
in


Su
b-


Sa
ha


ra
n


A
fr


ic
a


Low income Middle income


Recognize religious law and do not limit its ability to discriminate based on gender
Do not recognize religious law


Recognize religious law and limit its ability to discriminate based on gender


0


25


50


75


100


Source: Women–LEED–Africa.




WOMEN’S LEGAL RIGHTS ACROSS THE REGION 57


• Statutory limits on customary law. In general, the nondiscrimination bar is
lower in statutes, which may be able to discriminate as long as they pass the
repugnancy test and do not undermine the status of women.15 Interpreta-
tions of both conditions can be based on traditional gender roles (discussed
in chapter 4).


• Recognition of religious law as a source of law.
• Statutory limits on religious law.
• Recognition of customary or religious courts.


Patterns across countries for customary law. More than half of Sub-Saharan
countries recognize customary law as an independent source of law in statutes
(fi gure 2.9). In half of these countries, the application of customary law can be
limited by statute (the most common means is the repugnancy test). Under the
repugnancy test, customary law can still be discriminatory, but the diff erential
treatment should not be repugnant or contrary to natural justice.


Zambia, which explicitly exempts customary law from nondiscrimination
provisions in the constitution, calls for the repugnancy test in its Judicature Act.
Botswana, Ghana, and Zimbabwe also exempt customary law from nondiscrim-
ination, but they do not have a repugnancy test provision in their Judicature
Acts. Tanzania does not have a repugnancy test provision in its Judicature Act,
although it does require that customary law be consistent with the nondiscrimi-
nation clause in its Constitution.


Figure 2.9 Countries with Statutes Recognizing Customary Law as a Source of Law


Pe
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en
ta


ge
o


f c
ou


nt
ri


es
in


Su
b-


Sa
ha


ra
n


A
fr


ic
a


Low income Middle income


Recognize CL in statutes and limit its ability to discriminate based on gender
Do not recognize CL
Not found


0


25


50


75


100


Source: Women–LEED–Africa.
Note: CL = customary law.




58 EMPOWERING WOMEN


Patterns across countries for religious law. Low-income countries are more
likely than higher-income countries to recognize religious law. Of those that
do, more than half do not explicitly limit its ability to discriminate based on
gender (fi gure 2.10).


Th e likelihood that a country recognizes customary law, religious law, or both
can be analyzed along three dimensions: income, legal tradition, and rule of law
(as determined by the World Governance Indicators, a measure of the strength
of courts and the application and enforcement of laws based on many sources).
Low-income countries are more likely than middle- income countries to recognize
customary and religious law. Th ey are also more likely to do so in their statutes than
in their constitutions. Th is pattern is less a refl ection of their income, however, than
of diff erences in legal tradition: common law countries are more likely to recognize
customary and religious law in their constitutions, fi gure 2.11 indicates.


All but one common law country recognizes customary or religious law,
with half providing constitutional exemption from nondiscrimination. Among
civil law countries, less than 15 percent include this exemption. Half the civil
law countries recognize customary and religious law in statutes rather than the
constitution; only fi ve countries remain silent on both potential sources of law.


Countries reveal no clear relationship in treatment of customary and reli-
gious laws based on the rule of law.16 Countries in the top third (with the
strongest legal institutions) are the most likely to exempt customary law from


Figure 2.10 Countries with Statutes Recognizing Religious Law as a Source of Law


Pe
rc


en
ta


ge
o


f c
ou


nt
ri


es
in


Su
b-


Sa
ha


ra
n


A
fr


ic
a


Low income Middle income


Recognize religious law and do not limit its ability to discriminate based on gender


Not found
Do not recognize religious law


Recognize religious law and limit its ability to discriminate based on gender


0


25


50


75


100


Source: Women–LEED–Africa.




WOMEN’S LEGAL RIGHTS ACROSS THE REGION 59


nondiscrimination provisions, and countries in the middle third are least likely
to do so. Countries with the weakest legal institutions are least likely to recog-
nize customary or religious law as a source of law, in statutes or the constitution.


In recognizing customary or religious laws in statutes, few countries explic-
itly limit their ability to discriminate against women. Rather, the customary and
religious laws of all countries are limited by the repugnancy test, and appeals
can be made to the broader principles of the constitution.


Many countries’ statutes recognize the function of customary and religious
courts (fi gure 2.12). Th ese courts strengthen the institutional role of customary
or religious law. As chapter 4 discusses, customary and religious courts can be
more accessible than the formal judicial system. However, judicial oversight of
proceedings is generally weaker in customary and religious courts than in civil
courts—and to the extent that there are inconsistencies between statutory rights
and rights in customary or religious law, it is worth looking closely at which forum
is more likely to be advantageous to whom in particular disputes. Across coun-
tries, formal customary courts are more common than religious courts, and both
customary and religious courts are more prevalent in lower-income countries.


Figure 2.11 Treatment of Customary and Religious Law, by Income, Legal Tradition,
and Rule of Law


Pe
rc


en
ta


ge
o


f c
ou


nt
ri


es
in


Su
b-


Sa
ha


ra
n


A
fr


ic
a


Low Middle


Income Legal tradition


Civil
law


Common
law


Rule of law


Bottom
third


Middle
third


Top
third


Do not recognize either customary or religious law as formal sources of law
Do not recognize either in constitution, but recognize either in statutes
Recognize either in constitution; nondiscrimination and limits apply
Recognize either in constitution and either exempt from nondiscrimination or set no limits


0


25


50


75


100


Source: Women–LEED–Africa.




60 EMPOWERING WOMEN


Scoresheet 4: Legal Capacity


Issues Captured
Scoresheet 4 draws largely on family and marriage laws or codes. Only one
country (Swaziland) explicitly grants women minority legal status (despite its
constitutional provision that all laws be subject to the principle of nondiscrimi-
nation based on gender). In other countries, women’s ability to run their own
businesses is potentially aff ected by four factors: head-of-household laws; hus-
bands’ right to select the marital domicile; the need to obtain their husband’s
permission to enter contracts, open bank accounts, or obtain loans; and the
need to obtain their husband’s permission to work outside the home.


Head-of-household laws. Th e most common area in which women’s legal
capacity is limited is head-of-household statutes. Head-of-household laws are
a colonial heritage that remains mainly in former French colonies. Although
removed in France in the 1960s and 1970s, they remain in the civil and fam-
ily codes of some of the civil law countries in Sub-Saharan Africa. Th ese laws
establish the husband as the head of household and can give him the right to
control decisions and marital property.


Figure 2.12 Statutory Recognition of Customary and Religious Courts


Pe
rc


en
ta


ge
o


f c
ou


nt
ri


es
in


Su
b-


Sa
ha


ra
n


A
fr


ic
a


Low
income


Middle
income


Establishment of formal
customary courts


Recognition of informal
customary courts


Low
income


Middle
income


Recognition of
religious courts


Low
income


Middle
income


Not foundNoYes


0


25


50


75


100


Source: Women–LEED–Africa.




WOMEN’S LEGAL RIGHTS ACROSS THE REGION 61


Only one common law country (Sudan) maintains statutory recognition of
the husband as the head of household. Some legal hybrid countries used to have
marital powers acts that granted husbands similar powers, based on the ear-
lier Roman-Dutch tradition, but over the last 15 years, every legal hybrid Afri-
can country except Swaziland has repealed these laws. Botswana has repealed
these laws for civil marriages although not for customary marriages (box 2.5).
Regardless of the statutes, the concept behind head-of-household laws has been
infl uential in customary practices—and is still refl ected in the application of
customary law in many places.


Head-of-household provisions do not carry the same legal implications
in all countries. Some countries without such provisions still have statutes
that provide for the same powers of husbands over their wives as found in
marital powers acts. In other countries, the man is acknowledged as the
head of the household as a social distinction, but provisions in the law
explicitly state that husbands do not have power over the economic deci-
sions of their wives.


Head-of-household rules pose particular challenges where the husband is a
migrant worker and the woman is left in charge of the household. In these cases,
women may be legally constrained in many of their activities. In some cases,
women have to apply for a court order to seek the transfer of marital powers—
an extremely expensive and diffi cult process for most women.


BOX 2 .5


Head-of-Household Laws in Common Law Countries
The abolition of marital power in South Africa (Matrimonial Property Act 88 of 1984),
Namibia (Married Person Equality Act 1996 Act 1 of 1996), Botswana (Abolition of
Marital Power Act 34 of 2004), and Lesotho (Legal Capacity of Married Persons Act 9 of
2006) has led to better protection of property rights for women in marriage. However,
in Botswana, the abolition of marital power applies only to civil marriages of women of
European descent; for the rest of the population, customary law prevails unless spouses
specifi cally opt for a community of property regime at the time of marriage.


The restrictions removed in the four countries include the wife’s ability to enter into
contracts, register immovable property in her name, and litigate and administer joint
property. Namibia provides that the domicile of a married woman shall not by virtue
only of the marriage be considered the same as that of her husband, but shall be
ascertained by reference to the same factors as apply in the case of any other individual
capable of acquiring a domicile of choice. Women are also allowed to make decisions
without interference from husbands, which is important for entrepreneurship.


Source: Kamangu 2009.




62 EMPOWERING WOMEN


Husbands’ rights to select the marital domicile. If a business is run out of
the home or where clients are located nearby, changing residence can have a
signifi cant impact on business. For example, a dressmaker can develop a cli-
entele in her neighborhood. If her husband decides to move the household to
another village or area of the city, she would have to build up her client base
from scratch. Th is can happen in Benin, the Democratic Republic of Congo,
Rwanda, and other countries that give the husband sole authority to choose
the marital home. It can also happen under customary law. In Botswana, for
example, the Abolition of Marital Power (2004), which entered force in 2005,
applies only to civil marriages, not to customary or religious marriages. Th us,
the husband still determines the wife’s domicile on marriage in the vast majority
of marriages (Republic of Botswana 2008).


Need to obtain husband’s permission to enter contracts, open bank accounts,
and obtain loans. Banking and business laws tend to be gender blind,
but in the Democratic Republic of Congo, Gabon, Mali, Niger, and Togo,
a woman needs her husband’s permission to open a bank account, deposit
or withdraw any money made available to her by the husband, and even
deposit or withdraw her own money. These laws hamper women’s ability to
do business.


Need to obtain husband’s permission to work outside the home. In
Burundi, Cameroon, the Democratic Republic of Congo, the Republic of
Congo, Côte d’Ivoire, Gabon, Guinea, Mali, Mauritania, Niger, Rwanda, and
Togo, women have the right to exercise a profession or trade—but the hus-
band has the right to oppose her activities if he deems them to be against
the family’s interest. In some countries, the law does not delimit what the
family interest is, giving the husband discretion to decide. In Guinea, a wife
can challenge her husband’s opposition and continue to take on profes-
sional commitments and make contracts with third parties as long as the
third party is aware of the husband’s opposition (Article 329 of the Civil
Code of Guinea). The husband’s opposition is one more legal hurdle for the
woman—and likely a costly one.


Indicators
Scoresheet 4 includes the following indicators:


• Recognition of husband as head of household
• Husband’s ability to decide on marital domicile
• Need for husband’s permission to open a bank account
• Husband’s ability to deny wife permission to pursue a trade or profession or


to work outside the home




WOMEN’S LEGAL RIGHTS ACROSS THE REGION 63


Patterns across Countries
Th e prevalence of restrictions on women’s legal capacity is not signifi cantly diff er-
ent by country income (fi gure 2.13). It is more prominent in civil law countries,
where 18 of the 29 have head-of-household statutes. In common law countries,
only 3 of 18 do, with Swaziland recording all 4 head-of-household rules discussed
here and Sudan 3 of 4.


Th e right of the husband to choose the marital home is the most common way in
which men are given economic say over their wives’ decisions, though the ability to
deny permission to pursue a job or profession is also common. Th e need to obtain a
husband’s signature to open a bank account appears less common, but the database
captures only where this practice is required in marital statutes; many countries
allow banks to require a husband’s signature as part of their business practice.


Th e rule of law shows a wider range of patterns than country income.
Countries are divided into three equal groups based (on the World Gover-
nance Indicators for Africa. Restrictions on a wife’s legal capacity are less
common in the top third (countries with the strongest rule of law), particu-
larly on the choice of the home and the ability to work outside the home
(fi gure 2.14). In the eight countries in which the quality of the rule of law
is above the global average (Botswana, Cape Verde, Lesotho, Mauritius,


Figure 2.13 Head-of-Household Rules Are Common in Both Middle- and Low-Income Countries


Pe
rc


en
ta


ge
o


f c
ou


nt
ri


es
in


Su
b-


Sa
ha


ra
n


A
fr


ic
a


Low
income


Middle
income


Man as head
of household


Choice of
matrimonial home


by husband


Low
income


Middle
income


Husband can oppose
wife’s exercise of


trade or profession


Low
income


Middle
income


Need husband’s
permission to


open an account


Low
income


Middle
income


Not foundYes No


0


25


50


75


100


Source: Women–LEED–Africa.




64 EMPOWERING WOMEN


Namibia, Rwanda, Seychelles, and South Africa), only Lesotho gives hus-
bands the right to refuse their wives permission to work outside the home,
and only Botswana and Cape Verde require a husband’s signature before a
wife can open a bank account.


Scoresheet 5: Marriage and Property


Th is section looks at gender diff erences in the ability to own, control, and inherit
property following marriage. Default marital property regimes make a crucial
diff erence, because they determine whether spouses communally hold property
acquired during marriage (and sometimes even before) or each spouse holds
such property separately. Th e default may be overridden, however.


Scoresheet 5 records the eff ect of the default regime on control of property in
marriage, as well as on the division of property on divorce or the husband’s death.
It also indicates where statutes deviate from the patterns associated with either
common or civil law patterns. Th e section covers four issues: default property
regimes in marriage, women’s property rights in marriage, the division of marital
property on divorce, and the division of marital property on inheritance.


Figure 2.14 Head-of-Household Rules Are More Common in Countries with Weaker
Rule of Law


Pe
rc


en
ta


ge
o


f c
ou


nt
ri


es
in


Su
b-


Sa
ha


ra
n


A
fr


ic
a


Low HighMiddle Low HighMiddle Low HighMiddle Low HighMiddle


Man as head
of household


Choice of
matrimonial home


by husband


Husband can
oppose wife’s


exercise of trade
or profession


Need husband’s
permission to


open an account


Not foundYes No


0


25


50


75


100


Source: Women–LEED–Africa.




WOMEN’S LEGAL RIGHTS ACROSS THE REGION 65


Default Property Regimes in Marriage
Issues captured. Th e type of property regime largely determines a woman’s abil-
ity to own property during marriage and on its dissolution through divorce or the
death of the husband. Th ese property rights determine married women’s control
over assets that can be used as collateral in applying for a loan or used in a busi-
ness, as well as the incentive to accumulate additional assets or expand a business.
Th e share of assets a woman is entitled to when a marriage ends can be critical in
determining whether and what type of business she can run.


Default marital property regimes vary across countries. Th ey are regulated
by family code or statute, refl ecting the type of marriage contract (customary,
polygamous, or monogamous). Th ey come into play if the spouses make no
declaration or agreement on the regime before getting married (box 2.6).


Th e most common default property regimes are community ownership of prop-
erty (including universal community of property), separate ownership of property,
and customary law (table 2.1). Th ese categories are generally mutually exclusive.
Family codes or statutes may provide various options that the parties to a marriage
can select, usually by a written declaration before or at the time of the marriage or
aft er marriage by a postnuptial agreement. Th e default regime is the property regime
that will apply unless another is actively selected. Only one regime may apply.


Community ownership of property (also known as community of property). All
property acquired during marriage is owned equally by husband and wife,
except for property inherited or given as a gift to a spouse (unless the giver
specifi es that the property goes to both spouses). Personal property (property
a spouse owned before getting married) is not joint marital property. Univer-
sal community of property is similar to this regime but also includes property
owned by either spouse before marriage.


A community of property regime off ers women a better chance of maintain-
ing their property rights on dissolution of marriage than separate ownership
regimes because it entitles them to a portion, generally half, of the property
without having to make proof of contribution. Not having to prove contribu-
tion is vital, because millions of women in Africa contribute to marital property
through nonmonetized activities, such as performing household chores and
working in subsistence agriculture.


Even when community of property is the default regime, it may not always
apply, particularly in polygamous marriages, where the default is separate own-
ership. Separate property in a polygamous marriage protects a wife from hav-
ing her property divided among other wives, but it also limits a wife’s access to
assets acquired during marriage.


Separate ownership of property (also known as separate property). Parties to a
marriage generally retain control over property they owned before the marriage
and any property they acquired during the marriage. Property such as a marital




66 EMPOWERING WOMEN


home can be jointly owned by the spouses, but both have to make an express
agreement specifying so, such as registering the title in both their names.


One might expect this regime to protect women, because it allows them to own
and manage their property separately, an advantage particularly for women in busi-
ness, who then can use a title to property to access credit. In fact, a woman’s rights
may not be protected where her contribution is in the home or in a family business


BOX 2 .6


Alternatives to Default Marital Property Regimes:
Prenuptial and Postnuptial Contracts
In many civil law countries (such as Benin, Madagascar, Mauritania, and Senegal) and
common law countries (such as Botswana, Ethiopia, Namibia, Nigeria,a Kenya, South
Africa, and Swaziland), parties to a marriage can select or vary the marital regime
by signing prenuptial contracts. (In some countries, spouses can also vary the marital
regime during the marriage, through a postnuptial agreement.) In pre- and postnuptial
agreements contracts, the spouses agree on how property will be owned in marriage
and distributed on separation. The laws of most countries demand that prenuptial
agreements be made in front of a notary before or on the day of marriage. Such con-
tracts give room for the parties to determine their property (and other rights), allowing
them to add whatever clause they see fi t before the marriage. Without such an agree-
ment, the default regime comes into play.


Prenuptial agreements can be advantageous for women, but few African women
use them, because they lack knowledge of the law or are reluctant to jeopardize their
relationship by proposing one. Many women may own limited property and do not
see the value in making such an arrangement. Where bargaining power between the
spouses is unequal, prenuptial and postnuptial agreements can deprive women of their
rights under a statutory regime.


Prenuptial agreements can cover more than just assets. In Mauritania, for example,
Article 28 of the Personal Status of Persons Code 2001 provides that “in a marriage
contract, the wife can stipulate that, the husband should not get married to another
wife, should not prohibit her from continuing her studies, should not prohibit her from
working, should not be absent for a certain period of time, and any other conditions
not contrary to the fi nality of the marriage contract.” Article 29 states that “the partial
or total breach of the above conditions by the husband will lead to judicial dissolution
of the marriage initiated by the wife and an assistance of consolation, the amount
which will be determined by the judge.”


Source: Kamangu 2009.
a. Nigeria does not offer the option of a community of property regime, but it recognizes prenuptial and
postnuptial agreements under Section 72(2) of the Matrimonial Causes Act (1990) of Nigeria.




W
O


M
EN


’S LEG
A


L RIG
H


TS A
C


RO
SS TH


E REG
IO


N



67


Table 2.1 Main Features of Default Marital Property Regimes


Type of property Defi nition
Administration of


property within marriage Division of property on divorce
Inheritance of marital property by wife


on intestate death of husband


Default regimes


Community of property Property acquired during
marriage is owned jointly by
husband and wife (except
gifts or inheritance earmarked
for either spouse).


Consent of both husband
and wife is required on joint
assets (not on separate
property).


Joint assets acquired during marriage
(excluding separate property, such as gifts or
bequests) are divided 50–50.


Wife keeps separate property acquired before
marriage and inherits 50 percent of joint property
acquired during marriage. The other 50 percent
and husband’s separate property are part of
husband’s estate and may (or may not) go to wife.


Separate property Each spouse acquires and
owns property as individual.


Each spouse administers his
or her own property.


Each spouse receives 100 percent of his or her
own property. No presumption is made that a
spouse is entitled to any of the property of the
other spouse unless he or she can show that
fi nancial contributions were made.


No presumption is made that a wife is entitled
to any of her husband’s property.


Separate property,
with recognition
of nonmonetary
contributions


Each spouses acquires
and owns property as
individuals.


Each spouse administers his
or her own property.


A spouse may be entitled to some of the
other spouse’s separate property; the share is
determined by the monetary contribution to the
purchase and maintenance of the property and
on nonmonetary contributions (with this share
determined by statute, country case law, or both
and generally limited to less than 50 percent).


No uniform approach is made to wife’s share of
husband’s property on his death; nonmonetary
contributions are not necessarily considered for
inheritance; statutory benchmarks are generally
less than 50 percent and can be 0.


Universal community of
property


Property acquired before and
during marriage is owned
jointly by husband and wife.


Consent of both husband and
wife is required.


There is 50–50 division of all joint assets,
regardless of when acquired.


Wife inherits 50 percent of joint property
(regardless of when it was acquired). Other
50 percent is part of husband’s estate and may
(or may not) go to wife.


Traditional regimes


Dowry Groom’s family pays dowry
to bride.


Dowry is wife’s property, but
husband administers it.


Wife keeps dowry. Wife keeps dowry.


Bride price Groom’s family pays bride
price to bride’s family.


Bride price belongs to bride’s
family, not bride or groom.


Wife’s family must repay bride price to
husband’s family.


Bride price remains with wife’s family.


Note: In either of the two separate property regimes, joint ownership can be available. Ownership shares are then part of the legal agreement and are usually 50–50. The table pro-
vides generic characteristics; actual conditions in particular countries may vary.




68 EMPOWERING WOMEN


registered in her husband’s name. Although a subset of countries with separate
property regimes have provisions that allow such contributions from women to
count toward the overall assets acquired during marriage—and these nonmon-
etary contributions can be used to entitle the wife to a portion of the assets—the
share is rarely half and it does not always apply at divorce and inheritance.


Customary law. Some countries’ family codes and statutes include provisions
regarding the marital regime; other countries have left the marital regime to be
determined by customary law. Only three countries (Botswana, Burundi, and
Swaziland) provide that customary regimes are the default regime for statutory
marriages, though many more countries’ statutes include provisions on custom-
ary marriages.


Several countries, including Comoros and Madagascar, preserve their
unique customary law traditions through provisions in their family codes. In
Comoros, on marriage, the wife’s family is obliged to provide her with a house,
which remains her personal property even on divorce or the husband’s death.
Other marital provisions are a hybrid of community and separate ownership
regimes. For instance, any immovable property that is acquired during the mar-
riage is jointly owned, though the wife’s income and movable property are her
personal property.


In Madagascar, the default legal regime is the customary tradition of kitay
telo an-dalana, a variant of the community of property regime. On separation or
death, two-thirds of the communally owned marital property goes to the husband
and a third to the wife rather than the 50–50 split found in most other countries.17


Indicators. Scoresheet 5 includes the following indicators:


• Whether community of property, separate property of property, or a custom-
ary regime is the default regime. (If only one regime is allowed, it is shown
as the default. Given that the default regime in polygamous marriages is
separate property, countries with community of property as the default that
offi cially allow polygamy are shown as having both systems as the default.)


• Whether community of property is allowed as a marital regime
Th e default marital property regime is then used to group countries by the other
indicators in this section:


• Despite the default property regime, whether some countries still give the
husband additional powers over the administration of property


• Whether marriage statutes recognize customary marriages (interpreted in
conjunction with statutory provisions of nondiscrimination, where they exist)


• Whether polygamy is formally allowed (the default regime for polygamous
marriages is separate property)




WOMEN’S LEGAL RIGHTS ACROSS THE REGION 69


Patterns across countries.
Community of property. All civil law countries for which statutes were avail-
able allow community of property, although not always as the default regime
(see appendix A). Some countries off er universal community of property as an
option. Some common law countries, including Lesotho, Namibia, and South
Africa (whose colonial heritage actually makes them hybrid common/civil law
countries), also use community of property as the default regime.18 South Africa’s
default regime is universal community of property, which encompasses property
owned by either spouse before the marriage.19 Half the common law countries do
not allow community of property as an option. Figure 2.15 shows the prevalence
of the diff erent default marital property regimes.


Separate property. A separate property default regime is prevalent in civil law
countries that have signifi cant Muslim populations, allow polygamous mar-
riage, or both. It is oft en the default regime where the marriage is polygamous,
as in Gabon and Senegal; parties to a polygamous marriage are not allowed the
option of a community of property regime. Taking together the community of


Figure 2.15 Distribution of Default Marital Property Regimes


N
um


be
r


of
c


ou
nt


ri
es


in
S


ub
-S


ah
ar


an
A


fr
ic


a


Default Recognition of customary
law in marriage statutes


Polygamy allowed


Not foundNoYes


0


10


5


15


20


25


Co
m


m
un


ity


Se
pa


ra
te


Cu
sto


m
ar


y


Co
m


m
un


ity


Se
pa


ra
te


Cu
sto


m
ar


y


Co
m


m
un


ity


Se
pa


ra
te


Cu
sto


m
ar


y


Source: Women–LEED–Africa.
Note: 44 countries are included here. Guinea does not provide a default regime and it was not found for the
Central African Republic and Equatorial Guinea.




70 EMPOWERING WOMEN


property countries and countries that recognize polygamy, a substantial propor-
tion of the population in several community of property countries lives under
a separate property regime.


Separate property regimes are widespread in common law countries, par-
ticularly countries that were British colonies and adopted the Married Woman’s
Property Act. Many of these countries (including Th e Gambia, Ghana, Malawi,
Sierra Leone, Tanzania, Uganda, and Zambia) grant no option for community
of property by agreement. What is striking is that, even in separate property
regimes, the husband may still be given rights to administer marital property
and the private property of the wife.


Traditional regimes. Traditional regimes overlap with statutory default
regimes (fi gure 2.16; box 2.7). Data were not found for all countries,20 but these
regimes appear more prevalent in countries with separate property regimes.
Legislation in many countries recognizes the fact that dowry and bride price
are expected culturally but require that the sums paid are merely symbolic.


Figure 2.16 Statutory and Traditional Default Marital Property Regimes Overlap


N
um


be
r


of
c


ou
nt


ri
es


in
S


ub
-S


ah
ar


an
A


fr
ic


a


Dowry legally
required


(goes straight
to wife)


Bride price
paid to bride’s
family legally


required


Dowry and
bride


price legally
recognized


Not foundNoYes


Co
m


m
un


ity
Se


pa
ra


te
Cu


st
om


ar
y


Co
m


m
un


ity
Se


pa
ra


te
Cu


st
om


ar
y


Co
m


m
un


ity
Se


pa
ra


te
Cu


st
om


ar
y


Co
m


m
un


ity
Se


pa
ra


te
Cu


st
om


ar
y


Co
m


m
un


ity
Se


pa
ra


te
Cu


st
om


ar
y


Co
m


m
un


ity
Se


pa
ra


te
Cu


st
om


ar
y


Dowry and
bride price
customarily


required


Symbolic and
fixed sum


(where legally
required;
amount in
statute)


Banned


0


10


5


15


20


25


Source: Women–LEED–Africa.




WOMEN’S LEGAL RIGHTS ACROSS THE REGION 71


Very few countries have banned the practices outright. Given that dowries off er
women greater economic security than bride price (because women get to keep
their dowries aft er the marriage ends), reducing the size of dowries rarely ben-
efi ts them (box 2.8).


Women’s Property Rights in Marriage
Issues captured. Separate ownership of property regimes grants the husband
no additional rights in administering a wife’s property in marriage. In theory,
community of property regimes recognize property to be owned by the spouses,
usually equally, though many countries with such regimes give the husband
additional powers in administering property. In these cases, even where com-
munity of property in marriage guarantees women a percentage of the property
aft er dissolution of marriage because of divorce or husband’s death, during mar-
riage women have less legal control of marital property than under separate
property regimes—or even none at all.


Th ese head-of-household provisions can also apply to property owned jointly
by the spouses under an agreement in which the spouses are under a separate
property regime by choice or default. For instance, if a husband and wife who
are under a separate marital property regime buy property in joint names and
sign a written agreement refl ecting the joint ownership, the head-of-household
rules apply to that joint property.


Indicators. Scoresheet 5 includes the following indicators:
• Whether the husband as head of household administers or manages com-


munity of property alone


BOX 2 .7


Do Matrilocal and Matrilineal Communities Provide
Stronger Rights for Women?
In some matrilocal societies (societies in which the married couple lives near the wife’s
family), ownership of land can pass to daughters rather than sons. Women in matrilo-
cal societies tend to have higher status than women in patrilocal communities. And
customary law in matrilocal communities could be more advantageous to women than
formal statutory provisions.


In some matrilineal communities, although inheritance passes through the women’s
blood line, it is still generally given to males (the son of the husband’s sister thus inherits).
As such, this inheritance custom has little impact on promoting women’s economic rights.


Source: USAID 2006.




72 EMPOWERING WOMEN


• Whether the husband as head of household requires the consent of the wife
in managing marital property


• Whether the husband as head of household has powers to administer the
personal property of the wife


• Whether the husband as head of household can pay community debts from
the personal property of the wife


• Whether the personal debts of the husband can be paid from community
property


BOX 2 .8


Are Dowries and Bride Payments Bad for Women?
Dowry regimes are prevalent in countries with large Muslim populations; bride price
regimes are required by customary law in several countries. Both regimes can be incor-
porated into a country’s formal legal system though statutory provisions. Under a
dowry regime, the husband’s family usually pays a dowry to the bride. The assets are
then hers and remain hers, even on divorce. Dowry regimes usually coexist with the
property regimes outlined in this chapter; they are not default regimes. Examples are in
the family and civil codes of Comoros, Guinea,a Mauritania,b and Senegal.


Senegal allows for three regimes: separate ownership of property, community of
property, and dowry. Where the marriage is polygamous, only separate ownership and
dowry are allowed. Under a dowry regime, all immovable and movable property given
to the wife by people other than the husband has to be deposited in a dowry account
in her name. The application of a dowry regime on a house has to be stated in the
Land Registry. Administration of the dowry property is in the hands of the husband
during the marriage. The wife can seek an order asking for a separate property regime
if the husband mismanages the dowry property in a malicious or incompetent way, but
doing so is time consuming and potentially expensive.


Under a bride price system, the groom or his family make a payment to the bride’s
family. The Democratic Republic of Congo has a statutory bride price dowry regime,
although the amount of the dowry is legally limited in order to prevent bride price from
being treated as a commercial operation by the bride’s family and there are sanctions
for breaching the limit. If the couple divorces, this sum has to be repaid—a disincentive
for the woman to leave the marriage. Her family may also be reluctant to support her
in this decision, undermining her bargaining power in the household.


Source: Women–LEED–Africa.
a The dowry is a precondition of marriage and must be paid to the wife’s family.
b If the marriage has been consummated, the wife retains the whole amount. If not, she retains half the


amount.




WOMEN’S LEGAL RIGHTS ACROSS THE REGION 73


Patterns across countries. Seventeen countries have head-of-household provi-
sions in family codes or statutes. Th e last four indicators are shown in table 2.2.
In Cameroon, Guinea-Bissau, Madagascar, Niger, and Swaziland, the de jure legal
status provides that the husband has the right as head of household to manage,
control, and dispose of community property without the consent of the wife. In
Cameroon and Swaziland, where the husband is allowed to manage even the per-
sonal property of the wife, women’s ability to provide for collateral security is lim-
ited. By contrast, in Burundi, the Democratic Republic of Congo, the Republic of
Congo, Gabon, Mali, Rwanda, and Senegal, the husband administers community
property but has to obtain the wife’s consent in any acts of disposition, putting
women in a fairly advantageous position.


All common law countries except Swaziland that allow for community of
property have outlawed the marital power of the husband over the person and
property of the wife in civil marriages. Women in this system of marriage retain
full legal rights during marriage; the husband has to seek the consent of the
wife in dealing with marital property. On dissolution through death or divorce,
women are automatically entitled to half the property.


Division of Marital Property on Divorce
Issues captured. In the case of divorce, the division of property depends on the
default marital property regime as well as statutory recognition of nonmonetary
contributions.21 Statutory protections can also vary by type of marriage (regis-
tered, customary, or consensual union).22


Community of property regimes. Marriage under a community of prop-
erty regime guarantees that a woman receives a share of the marital property
on divorce. Because property is jointly owned (except for gift s and bequests


Table 2.2 Inequalities in Administration of Property During Marriage, by Type of Regime


Indicator
Community of


property
Separate
property Customary


Husband does not require consent of wife in
managing marital property.


Cameroon, Guinea-
Bissau, Madagascar


Niger Swaziland


Husband has powers to administer wife’s personal
property.


Cameroon — Swaziland


Husband can pay community debts from wife`s
personal property.


Cameroon Mali, Togo Swaziland


Husband’s personal debts can be paid from
community property.


Cameroon, Mauritius Mali, Togo Swaziland


Source: Based on data from Women–LEED–Africa.
Note: Insufficient information was available for the Central African Republic, Chad, Equatorial Guinea, and Somalia.
— = No examples found.




74 EMPOWERING WOMEN


specifi cally designated to be the personal property of one spouse), both mon-
etary and nonmonetary contributions are recognized; on divorce, women have
property they can use as collateral to set up a business (box 2.9). Most countries
provide for a 50–50 split of marital property on divorce.


In countries in which the husband has been given greater powers over the
administration of marital property in the community of property regime, he
can maliciously mismanage property because of marital confl ict. Some of these
countries have legal provisions that allow women to challenge mismanagement
of community property,23 but they require women to fi le a claim in court, which,
as illustrated in box 2.6, is not easy.


Separate property regimes. Under separate property regimes, parties are gener-
ally entitled to retain their share of assets but are not entitled to a share of the
spouse’s assets. Title and fi nancial contributions determine how assets are divided.


Statutory recognition of nonmonetary contribution. Many countries rec-
ognize that spouses may have indirectly contributed to buying assets. Th eir
unpaid work in the household may have allowed the other spouse to earn
income that then fi nances the purchase of the asset. Th ese nonmonetary
contributions can be considered in countries that provide for their inclusion
in the division of assets. Most countries do not specify how nonmonetary


BOX 2 .9


Protecting the Marital Home as a Woman’s Place of Business
Laws that explicitly defi ne property rights for women help safeguard their rights to
property on divorce. In Burundi, for example, Article 172 of the Family Code 1993
provides the following:


During divorce proceedings and at the demand of one of the parties, the
court will take into considerations the interest of the household and that of
the children, on the separation of the residence of the spouses and the return
of personal property. If the matrimonial home was used for the exercise of an
art, liberal profession, artisanal works, trade or industry, the court will take all
necessary measures to safeguard the interest of each of the spouses and the
interest of the clients.


Such laws help businesswomen protect their business on divorce. They are very impor-
tant because in most civil law countries, especially in West Africa, most women have
informal businesses, many of them in their marital homes. If they are forced to leave
the marital home on divorce, they risk losing their businesses and clients.




WOMEN’S LEGAL RIGHTS ACROSS THE REGION 75


contributions should be assessed, however, leaving this determination to the
judge or jury (box 2.10).24


Indicators. Th e database records laws on divorce and the default marital prop-
erty regime (see fi gure 2.15). Th e indicators cover the following features:


• Provision of equal division of marital property on divorce
• Recognition of a wife’s nonmonetary contribution in determining the share


of property she receives in countries with a separate property regime
• Women’s entitlement to some of the marital property on divorce in statutory


marriages, customary marriages, and consensual unions


Patterns across countries. Equal division of property on divorce is far more
common under community of property regimes than other regimes (fi gure
2.17). By contrast, only a few countries with separate property regimes recog-
nize the wife’s nonmonetary contribution.


Th e benefi ts of legal protection to receive marital property on divorce gener-
ally accrue only to people in statutory marriages (fi gure 2.18). People in custom-
ary marriages or consensual unions rarely receive these protections.25


BOX 2 .10


Divorce Laws Recognizing Women’s Nonmonetary Contributions
South Africa’s Divorce Amendment Act, No.7 of 1989, requires courts to consider what
is just and equitable in dividing marital property. The court should consider the direct
and indirect contribution to the maintenance or increase of the estate. Section 8(4)
of South Africa’s Recognition of Customary Marriages Act of 2000 confers equitable
jurisdiction to deal with customary marriages with a separate property regime (such as
polygamous customary marriages).


Tanzania’s Law of Marriage Act of 1971 requires courts to consider the extent of
contribution of each party in terms of money, property, and work toward asset acquisi-
tion. The act requires courts to consider equality as much as possible in dividing assets,
particularly where there are minor children.


Zimbabwe’s Matrimonial Causes Act of 1985 obliges courts to consider the direct
and indirect contributions of each spouse to the family, including contributions such as
looking after the home, in determining the division, apportionment, and distribution
of the spouses’ assets.


Source: Women–LEED–Africa.




76 EMPOWERING WOMEN


Division of Marital Property on Inheritance
Issues captured. Inheritance is one of the main ways in which women access
and control property. It is also one of the principal areas in which women
encounter property disputes. Th e focus here regards cases in which the husband
dies without a will. Th e legal framework for succession laws in Sub-Saharan
Africa falls under constitutions, family laws, and customary laws. Religious laws
also determine a woman’s ability to access or control property on the husband’s
death. Judicial precedents also play a large role. All these factors determine the
extent to which women can own and control property when the husband dies
and thus their ability to use such assets in their business.


Community of property. Under a community or property regime, a widow
generally automatically inherits 50 percent of the estate’s community property.
If she is one of the heirs to the estate, she can inherit an additional share. Th ese
shares can vary by country, based partly on the presence of children, parents,
grandparents, siblings, and cousins.26


Figure 2.17 Division of Marital Property on Divorce, by Default Marital Property Regime and
Selected Indicators


N
um


be
r


of
c


ou
nt


ri
es


in
S


ub
-S


ah
ar


an
A


fr
ic


a


Co
m


m
un


ity


Se
pa


ra
te


Cu
sto


m
ar


y


Co
m


m
un


ity


Se
pa


ra
te


Cu
sto


m
ar


y


Equal division of
matrimonial property


Recognition of wife’s
nonmonetary contribution


Not foundNoYes


0


10


5


15


20


25


Source: Women–LEED–Africa.




WOMEN’S LEGAL RIGHTS ACROSS THE REGION 77


Separate property. Under a separate property regime, married women do not
automatically inherit from their husband’s estate. Some countries provide for
some inheritance, but the share is usually far less than half. (As discussed in
chapter 3, the courts can interpret unclear wording in these provisions to limit
the assets widows receive.)


Statutory user rights to property. A common practice in many countries is to
provide the surviving wife with user rights rather than to transfer ownership.
Th ese rights allow the widow to occupy land, including the house, and cultivate
it during her lifetime or until remarriage. Th is practice provides some protec-
tion of women’s economic well-being, but it does not confer the same economic
rights as inheritance, as the woman is not allowed to sell the land or bequeath it
aft er her death.27 Countries that allow women to inherit property (as opposed to
granting user rights) thus provide more secure rights, as inheriting land allows
a woman to use the land as collateral or to set up a business directly.


Division of property among wives in polygamous marriages. Under separate
property regimes, provisions can be made that entitle wives to a share of the


Figure 2.18 Woman’s Entitlement to Marital Property on Divorce, by Default Marital
Property Regimes and Type of Union


N
um


be
r


of
c


ou
nt


ri
es


in
S


ub
-S


ah
ar


an
A


fr
ic


a


Co
m


m
un


ity


Se
pa


ra
te


Cu
sto


m
ar


y


Co
m


m
un


ity


Se
pa


ra
te


Cu
sto


m
ar


y


Co
m


m
un


ity


Se
pa


ra
te


Cu
sto


m
ar


y


Statutory marriages Customary marriages Consensual unions


Not foundNoYes


0


10


5


15


20


25


Source: Women–LEED–Africa.




78 EMPOWERING WOMEN


husband’s estate. Th e issue is more complicated when there are multiple wives,
particularly if the statute’s language uses words such as “spouse.” Th e practice
has been to have the wives as a group inherit the amount left to “the wife” or “the
spouse,” meaning that that share is divided among them. In Ghana, for example,
“the wife” is entitled to use the marital home. Even if there were four wives, each
in her own home, on the death of the husband, the wives would be entitled to
only one home among the four of them.


Indicators. Indicators focus on the laws of intestate succession—that is,
how property is divided if the deceased dies without a will. Th ey include the
following:


• Whether the law recognizes the ability of a wife in a statutory marriage to
inherit


• Whether the law recognizes the ability of a wife in a customary marriage to
inherit


• Whether the law recognizes the ability of a wife in a consensual union to
inherit


• Whether there is statutory recognition of a minimum share that a wife inher-
its on the death of her husband


• Whether the law recognizes a wife’s portion in joint property in distribution
on her husband’s intestate death


• Whether the law recognizes user rights


Patterns across countries. Consistent with the recognition of custom-
ary law in the constitutions, succession or inheritance acts in common law
countries are more likely than succession or inheritance acts in civil law
countries to discuss customary law practices and include provisions that
make women in customary marriages eligible to inherit at least some assets
(figure 2.19). Many of the legal protections of women’s inheritance depend
on the marital regime, with statutory marriages usually offering far more
protections than customary marriages or consensual unions. Like property
rights on divorce, women’s inheritance rights are generally weaker under
separate property regimes and stronger where specific legal provisions in
inheritance laws provide them with a share of the estate (figure 2.20).


Th e rights of widows to inherit property vary by marital property regime.
Widows oft en have the right to use the marital home and the land of the deceased;
less oft en, they have rights to maintenance from the estate of the deceased (fi gure
2.21). In many countries, these benefi ts end when the widow remarries.




Figure 2.19 Widows’ Entitlement to Inherit Marital Property When Husband Dies Intestate,
by Default Marital Property Regime and Type of Union


N
um


be
r


of
c


ou
nt


ri
es


in
S


ub
-S


ah
ar


an
A


fr
ic


a


Co
m


m
un


ity


Se
pa


ra
te


Cu
sto


m
ar


y


Co
m


m
un


ity


Se
pa


ra
te


Cu
sto


m
ar


y


Co
m


m
un


ity


Se
pa


ra
te


Cu
sto


m
ar


y


Rights of women married
under statutory law


Rights of women married
under customary law


Rights of women in
consensual unions


Not foundNoYes


0


10


5


15


20


25


Source: Women–LEED–Africa.


Figure 2.20 Different Types of Default Marital Property Regimes Grant Women Very
Different Rights to Inherit Marital Property


N
um


be
r


of
c


ou
nt


ri
es


in
S


ub
-S


ah
ar


an
A


fr
ic


a


Co
m


m
un


ity


Se
pa


ra
te


Cu
sto


m
ar


y


Co
m


m
un


ity


Se
pa


ra
te


Cu
sto


m
ar


y


Co
m


m
un


ity


Se
pa


ra
te


Cu
sto


m
ar


y


Recognition of wife’s
portion of joint property


intestate


Entitlement of wife to a
minimal share of


matrimonial property


Statutory recognition of
customary law in property


inheritance (such as in
Succession Acts)


Not foundNoYes


0


10


5


15


20


25


Source: Women–LEED–Africa.




80 EMPOWERING WOMEN


Scoresheet 6: Land Law and Land Rights


Issues Captured
Th is section focuses on title, the assertion of customary rights, the ability to
inherit, and the ability to access property that can be used in a business or as
collateral for loans.28 Especially in Sub-Saharan Africa’s collateral-based bank-
ing systems, these issues are key to enterprise development.


Th e introduction of formal land titling systems was particularly disadvan-
tageous to women in many countries, because it increased men’s control over
land through registration, which was (and is) oft en allowed in only a single
name—the head of household. Even where joint names were (and are) allowed,
social norms meant that women did not add their names to the title. Women’s
customary user rights to land were also sidelined by titling systems, which oft en
failed to acknowledge women’s user rights (box 2.11).


Gender diff erences in accessing and controlling land remain a major problem
in Sub-Saharan Africa (Joireman 2009, Peters 2009). Whereas most men reported
unfettered rights to give land to family members, less than 5 percent of women did
do so in Burundi, Uganda, and Zambia (Place 1995). Women are rarely allowed
to inherit land, even in matrilineal systems; they seem to fare better in acquiring
short-term rights to land through renting or sharecropping markets. A few excep-
tions stand out. In cocoa-growing areas of Ghana, for example, women are granted
rights to land and trees through gift s (see Lastarria-Corhiel 1997; Quisumbing and


Figure 2.21 Widow’s Entitlement to Use Marital Property, by Default Marital Property
Regime


N
um


be
r


of
c


ou
nt


ri
es


in
S


ub
-S


ah
ar


an
A


fr
ic


a


Community Separate


Rights of maintenance
from estate of deceased


Right to remain in and use
house and land of deceased


Customary Community Separate Customary


Not foundNoYes


0


5


15


10


20


25


Source: Women–LEED–Africa.




WOMEN’S LEGAL RIGHTS ACROSS THE REGION 81


others 1999). Th e avenues available to women in accessing land include purchase,
allocation (with customary land tenure), distribution (on divorce), and inheri-
tance. Intestate succession laws in several countries, such as Ghana and Zambia,
exclude customary or lineage land from property widows can inherit. Instead, the
land follows customary rules of inheritance, usually going to a male heir. As a
signifi cant percentage of land is customary land in many countries (60 percent
in Swaziland, 72 percent in Malawi, 80 percent in Mozambique, and 81 percent
in Zambia [UNECA 2003]),29 this exclusion represents a signifi cant impediment.


Indicators
Scoresheet 6 reports on land laws (protections in the constitutions are in
scoresheet 2). Some land laws are gender neutral, others recognize the rights of
women to own land. Indicators include the following:


• Availability of any form of statutory protection for women’s land rights under
land laws


• Statutory recognition of customary law applying to ownership of land, dis-
tribution of land, or both


• Exemption of customary land from succession statutes
• Availability of co-ownership (based on marriage) to women


Patterns across Countries
Customary ownership of land is widely recognized in statutes (fi gure 2.22). In
common law countries, only Seychelles does not recognize customary owner-
ship; in civil law countries, almost two-thirds do so. In many cases, customary
ownership of land is patriarchal and keeps women from owning and inheriting
land. But customary ownership can also provide important user rights, particu-
larly aft er divorce or on inheritance.


BOX 2 .11


Stripping Women of Customary Rights to Land
through Titling in Kenya
After independence, the government of Kenya maintained the formal and individualized
titling of the colonial era: the 1963 Registered Land Act eliminated and replaced the cus-
tomary systems of communal ownership with the formal British style of individual own-
ership. The rights of title holders are set out in gender neutral language. But title deeds
are registered in the names of men even though titles can be held in the name of more
than one person. The vesting of absolute ownership to land in the title holder excludes all
claims by women, including customary rights of access and usage.


Source: Kamangu 2009.




82 EMPOWERING WOMEN


Fewer than half the countries explicitly grant women the right to own land.
Providing for co-ownership of land on the basis of marriage is even less com-
mon, albeit more prevalent in middle-income than in low-income countries.
Among countries that recognize customary land ownership, half have statutory
provisions for women’s land rights.


Scoresheet 7: Labor Laws


Scoresheets 1 and 2 examine protection of women’s rights to equal work and
equal pay provided in constitutions and ILO conventions. Th is section comple-
ments the discussions there by examining statutory protections.


Issues Captured
Labor laws directly aff ect employees. Th ey can also aff ect rates of entrepre-
neurship by increasing or decreasing the availability and attractiveness of wage
employment (Altonji and Bank 1999; World Bank 2011).


In many countries, laws and regulations restrict the kind of work women may
perform or limit the hours they are permitted to work. Some restrictions apply


Figure 2.22 Only a Minority of Countries Provide Statutory Protections to Women’s Land Rights


Pe
rc


en
ta


ge
o


f c
ou


nt
ri


es
in


Su
b-


Sa
ha


ra
n


A
fr


ic
a


Low
income


Middle
income


Women’s land
rights are explicitly


protected


Statutory recognition
of customary law
applies to land
ownership and


distribution


Low
income


Middle
income


Low
income


Middle
income


Customary land
exempted from
succession laws


Women entitled to
co-ownership of


property based on
marriage


Low
income


Middle
income


Not foundNoYes


0


25


50


75


100


Source: Women–LEED–Africa.




WOMEN’S LEGAL RIGHTS ACROSS THE REGION 83


to all women, others only to pregnant women. Th ese restrictions—adopted in
order to protect women—can actually hurt them.


Indicators
Scoresheet 7 includes the following indicators:


• Whether there is statutory protection of equal pay for equal work
• Whether there are restrictions on the industries in which women may work,


on the hours women may work, or both
• Whether there are statutory requirements to provide maternity leave and


provisions relating to the duration of such leave and how such leave is funded
• Whether there are restrictions on the industries in which pregnant women


can work, the hours pregnant women may work, or both
• Whether there are provisions for maternity leave


Patterns across Countries
Most countries’ statutes provide for the equal right to work (39 countries) and
stipulate equal pay for equal work (37 countries). Labor laws in Botswana, Mau-
ritius, and Zambia do not provide for the equal right to work or for equal pay.
By contrast, Liberia, Seychelles, and Sudan refer to labor rights such as equal
pay for equal work in their constitutions (fi gure 2.23).


Figure 2.23 Constitutional Recognition of Nondiscrimination in the Workplace


Pe
rc


en
ta


ge
o


f c
ou


nt
ri


es
in


Su
b-


Sa
ha


ra
n


A
fr


ic
a


Low income Middle income


Nondiscrimination in the workplace Equal pay for work of equal value


Low income Middle income


No Not foundYes


0


25


50


75


100


Source: Women–LEED–Africa.




84 EMPOWERING WOMEN


All but four countries that provide constitutional protections for the
equal right to work and the right to equal pay have corresponding statutes.
Some countries have statutory but not constitutional protections. Taken
together, middle-income countries and countries with a stronger rule of
law are more likely to lack equal pay protections (figure 2.24). This pattern
reflects the fact that fewer common law countries include these protections
in their statutes.


Twenty-six countries restrict the industries in which women may work;
another 10 restrict the rights of pregnant women (fi gure 2.25). Seventeen
countries restrict the hours women may work; another 18 apply this restric-
tion to pregnant women only. Th ese restrictions, combined with other limits
resulting from head-of-household provisions, constitute a signifi cant obstacle
to women participating in the labor force as wage workers. Th ey may be one
of the factors contributing to the fact that most women not employed in agri-
culture are self-employed in informal and small-scale enterprises.


Figure 2.24 Statutory and Constitutional Protection of the Right to Equal Pay for Work
of Equal Value


Pe
rc


en
ta


ge
o


f c
ou


nt
ri


es
in


Su
b-


Sa
ha


ra
n


A
fr


ic
a


Low Middle


Income Legal tradition


Civil
law


Common
law


Rule of law


Top
third


Middle
third


Bottom
third


Not protectedNot constitution, but statuteConstitution


0


25


50


75


100


Source: Women–LEED–Africa.




WOMEN’S LEGAL RIGHTS ACROSS THE REGION 85


Conclusion


Every country in Sub-Saharan Africa recognizes nondiscrimination as a con-
stitutional guiding principle—but numerous exceptions are formally allowed.
Many countries have head-of-household statutes or recognize customary law
in matters of property and inheritance and exempt it from nondiscrimination
protections. Th e choice of marital regime (statutory, customary, or consensual
union) can thus have important implications for women’s rights.


Gender gaps in legal rights do not necessarily close when the rule of law
is stronger. Gaps in legal capacity are more common and protection of labor
rights weaker in countries in which the rule of law is weak. But the exemption
of customary law from nondiscrimination provisions is oft en more common
where the enforcement of the rule of law is strong.


Gaps in legal rights are also not closely associated with income: similar pro-
portions of middle-income countries have gender gaps as low-income coun-
tries. Economic growth alone will thus not improve conditions for women.
More interventionist measures, described in chapter 5, are needed.


Figure 2.25 Many Countries Restrict the Type of Work Women Can Perform and Women’s Hours


Pe
rc


en
ta


ge
o


f c
ou


nt
ri


es
in


Su
b-


Sa
ha


ra
n


A
fr


ic
a


Low income Middle income


Restrictions on nature of work Restrictions on hours


Low income Middle income
0


25


50


75


100


Not foundNo restrictionsOnly pregnant womenAll women


Source: Women–LEED–Africa.




86 EMPOWERING WOMEN


Notes
1. Th is database examines the de jure situation based on the letter of the law. Case law,


which also determines de jure rights, is examined in later chapters. It is not part of
the database, however, because it is not possible to implement an exhaustive review
of court decisions. Th e database does not measure the extent to which provisions of
the law are carried out-and, as chapter 4 documents, there can be substantial gaps
between the de jure and de facto situation. Even for gender-blind laws, such as laws
covering banking and business laws, this study does not address whether their prac-
tical eff ect is gender neutral (that is, whether banks assess certain requirements, such
as documents of title for collateral, diff erently for men and women). Th e companion
volume, Enterprising Women: Expanding Opportunities in Africa (2013), addresses
these areas through surveys of entrepreneurs.


2. Customs or traditions, as opposed to formal customary law, aff ect de facto outcomes.
Th ey are discussed in chapter 4.


3. Th e entire database is available online, at http://documents.worldbank.org/query?
title=Women+LEED+Africa+Database.


4. Customary and religious laws do not necessarily weaken nondiscrimination provi-
sions, but simply having multiple systems creates room for potentially divergent
views that render uncertain the strength of any provision. At a certain level, all coun-
tries have multiple systems, but the issue is particularly relevant in Africa, where
customary law is recognized as a formal source of law in many countries and prevails
in large areas of the law.


5. Some countries are hybrid systems, with features of both common and civil law.
Cameroon formally recognizes both systems. Ethiopia, Mauritius, and countries in
southern Africa are hybrids. Rwanda is switching from a civil system to a hybrid sys-
tem as it seeks to join the East African Community. In these cases, the predominant
system is chosen (see scoresheets in appendix A).


6. However, the average GDP per capita ignores underlying variations in the structure
of the economy and other factors that may aff ect growth but do little to change
women’s ability to share in this growth.


7. In monist states, ratifying an international treaty binds a state by its provisions. Leg-
islative approval is gained before signing the treaty; once it is signed it has the force
of law domestically (as well as in international forums). Dualist states require a for-
mal domestication procedure: domestic laws need to be changed to bring them into
line with the treaty. Th e purpose of the Vienna Convention on the law of treaties is to
ensure that states that ratify international instruments take measures to domesticate
and allow the implementation of ratifi ed treaties in their territories.


8. In addition, Mauritania and Niger have substantive reservations, and Ethiopia and
Mauritius have reservations about the arbitration procedure.


9. CEDAW requires countries to fi le reports on the progress they have made in achiev-
ing the requirements of the treaties. Th e reports include a discussion of where coun-
tries still need to make progress.


10. Th ese earlier conventions are from 1919, 1934, and 1948, and so are long-standing
conventions. Newer conventions—such as Convention 171 (1990) and the 1990 Pro-




WOMEN’S LEGAL RIGHTS ACROSS THE REGION 87


tocol to Convention 89—lift restrictions on nonpregnant women. However, Mada-
gascar is the only one to have signed them.


11. Indicators on the standards needed to show standing, which are found in adminis-
trative laws, are not included. Th ey can vary across subject areas and be interpreted
in conjunction with other statutes and regulations, making it diffi cult to establish
standardized measures.


12. Botswana has no written provisions for heads of household, but customary law
applies as the default marital regime—and the Repeal of the Marital Power Act does
not apply to customary marriages. Botswana also recognizes customary law in the
constitution and exempts it from nondiscrimination provisions.


13. Other countries had similar provisions but reformed their marital powers acts.
14. Within the region, Sharia is the most common source of religious law recognized.


Because it applies to larger shares of the population in more countries than other
sources of religious law, most of the discussion here is devoted to it.


15. Th e repugnancy test is a legal doctrine dating from the British colonial era. Its origi-
nal purpose was to give the colonial administrators a level of oversight over the
customary and religious legal system. Customary laws could be challenged, and the
courts could decide not to enforce them, if they were found to be repugnant to natu-
ral justice, equity, or good conscience.


16. Th e rule of law measure comes from the Global Governance Indicators. Th is mea-
sure is based largely on enforcement and the role that rules and law play in settling
disputes; it is not based on the quality or content of the laws themselves. Th us there
is no circularity between this measure and indicators of gender gaps in legal rights.


17. Titre Préliminaire, Article A, Law No. 67-030 (December 1967) relates to marital
regimes and succession.


18. Many Namibians fall under the apartheid-era Native Administration Proclamation
Act 15 of 1928, which applies to black Namibians north of the old “police line” (the
historically black territories under apartheid). Th e majority of poor black women
live in this region. Civil marriages in this region are by default under a separate
ownership regime. Th e High Court of Namibia has declared provisions of this act to
be unconstitutional and has ordered the government to reform this law. Th e govern-
ment has yet to fi nalize its eff orts.


19. Section 7(2) of the Recognition Act (2000) of South Africa extends the default
regime of community property to monogamous customary marriages. Th e parties
to a civil or monogamous customary marriage can opt out of the default universal
community of property regime by a prenuptial agreement and select either a sepa-
rate property regime or a separate property regime with accrual of profi ts (similar
to a simple community of property regime).


20. It should also be kept in mind that the characterization of countries most oft en rep-
resents some tribes or ethnic groups, but may not be applicable to the whole country.


21. Other issues—such as whether divorce is “allowed” and whether the issue of “fault”
aff ects what happens to assets (and children)—may also matter. Th ese issues were
beyond the scope of this study.


22. Customary marriages are marriages recognized by the performance of customary
rites; they may or may not be formally registered with the state. Consensual unions




88 EMPOWERING WOMEN


are couples who live together but are not married according to religious or custom-
ary practices or registered with the state. Most relationships in many countries are
customary marriages or consensual unions.


23. For example, Article 87 of Côte d’Ivoire’s 1983 Marriage Code allows the wife to
bring a claim before the court to revert to a separate property regime if the husband
mismanages community property.


24. Th is issue is likely to make it to court only for wealthier couples. However, it is an
important signal for the wider population about how nonmonetary contributions
are treated.


25. An exception is couples in matrilocal communities (communities in which the hus-
band moves to his wife’s village).


26. Th e United Nations Convention on the Rights of the Child stipulates that children
born out of wedlock fall under succession. Th e laudable intention was to provide for
all the deceased’s children; the eff ect, however, was to further diminish the property
rights of the widow.


27. Depending on the nature of the ownership arrangements of the land, similar restric-
tions may also pertain to men. But the more common pattern is that women have
user rights in land that belongs to the husband’s family—rights that do not confer to
their children and oft en “expire” when they remarry.


28. Th e two major land tenure systems in Sub-Saharan Africa are customary and statu-
tory tenure. Current land tenure regimes, which generally include a mix of custom-
ary, statutory, and legal arrangements, have their origins in the early colonial period
of land consolidation, when colonialists left family and community concerns such as
land under the jurisdiction of customary law and customary courts. Aft er the 1930s,
customary tenure arrangements became an obstacle to changing colonial objectives,
which incorporated the promotion of economic growth through agricultural pro-
duction. Th e new goals were predicated upon the state’s fostering the emergence of
a freehold system and individual property of land ownership. With the introduction
of private property systems, women lost out, because their rights to land through
husbands, fathers, or sons diminished in importance.


29. In 2006, Zambia’s Land Ministry estimated the share of customary land at 93 percent
2006 (Ministry of Lands of the Republic of Zambia 2006). Whatever the exact fi gure,
the vast majority of land in Zambia is customary land.




WOMEN’S LEGAL RIGHTS ACROSS THE REGION 89


References
Altonji, Joseph, and Rebecca Bank, 1999. “Race and Gender in the Labor Market.” In


Handbook of Labor Economics, vol. 3, Part C, ed. Orley Ashenfelter and David Card,
3143–259. Amsterdam: Elsevier.


Diarra, Marthe, and Marie Monimart. 2006. “Landless Women, Hopeless Women: Gen-
der, Land and Decentralisation in Niger.” IIED Issues Paper 143, International Insti-
tute for Environment and Development, London.


Henrysson, Elin, and Sandra F. Joireman. 2009. “On the Edge of the Law: Women Prop-
erty Rights and Dispute Resolution in Kisii Kenya.” Law & Society Review 43 (1):
39–60.


Joireman, Sandra F. 2008. “Th e Mystery of Capital Formation in Sub-Saharan Africa:
Women, Property Rights and Customary Law.” World Development 36 (7): 1233–46.


———. 2009. Comment made at workshop on “Law, Custom and the Investment Climate
for Women Entrepreneurs in Africa,” World Bank, Washington, DC, July.


Kamangu, Jane. 2009. “Th e Principles of Non-Discrimination and Equal Protection of
the Law: A Case Study of Unwed Mothers and Children Born out of Wedlock in
Kenya.” Paper presented at the meetings of the 2008/09 Leadership and Advocacy for
Women in Africa Fellows, Georgetown University, Washington, DC.


Kane, Minneh, J. Oloka-Onyango, and Abdul Tejan-Cole. 2005. “Reassessing Custom-
ary Law Systems as a Vehicle for Providing Equitable Access to Justice for the Poor.”
Paper presented at the conference “New Frontiers of Social Policy,” Arusha, Tanzania,
December 12–15.


Kuruk, Paul. 2002. “African Customary Law and the Protection of Folklore.” UNESCO
Bulletin 36 (2): 4–32.


Lastarria-Cornhiel, Susana. 1997. “Impact of Privatization on Gender and Property
Rights in Africa.” World Development 25 (8): 1317–33.


Ministry of Lands of the Republic of Zambia. 2006. Zambia Draft Land Policy. Lusaka:
Ministry of Lands.


Nhlapo, Th andabantu. 1995. “Indigenous Law and Gender in South Africa: Taking
Human Rights and Cultural Diversity Seriously.” Th ird World Legal Studies (1994–95):
49–71.


Peters, Pauline E. 2009. “Challenges in Land Tenure and Land Reform in Africa: Anthro-
pological Contributions.” World Development 37 (8): 1317–25.


Place, Frank. 1995. “Th e Role of Land and Tree Tenure on the Adoption of Agroforestry
Technologies in Zambia, Burundi, Uganda, and Malawi: A Summary and Synthesis.”
Land Tenure Center, University of Wisconsin–Madison.


Platteau, Jean-Philippe, Anita Abraham, A. Brasselle, F. Gaspart, A. Niang, J. Sawadogo,
and L. Stevens. 2000. “Marriage System, Access to Land and Social Protection for
Women.” Centre de Recherche en Economie du Développment, Namur, Belgium.


Quisumbing, Agnes, Ellen Payongayong, J. B. Aidoo, and Keijiro Otsuka. 1999. “Wom-
en’s Land Rights in the Transition to Individualized Ownership: Implications for the
Management of Tree Resources in Western Ghana.” FCND Discussion Paper 58, Inter-
national Food Policy Research Institute, Food Consumption and Nutrition Division,
Washington, DC.




90 EMPOWERING WOMEN


Republic of Botswana. 2008. “Botswana Report on the Implementation of the Conven-
tion of the Elimination of All Forms of Discrimination against Women.” CEDAW/C/
BOT/3, Gabarone.


Simavi, Sevi, Clare Manuel, and Mark Blackden. 2010. Gender Dimensions of Investment
Climate Reform: A Guide for Policy Makers and Practitioners. Washington, DC: World
Bank.


Sowsidibe, Amsatou. 1994. “Senegal’s Evolving Family Law.” University of Louisville Jour-
nal of Family Law 32 (2): 421–30


UNECA (United Nations Economic Commission for Africa). 2003. “Land Tenure Sys-
tems and Sustainable Development in Southern Africa.” UNECA, South Africa Offi ce,
Lusaka, Zambia.


USAID (U.S. Agency for International Development). 2006. “Study on Women and
Property Rights: Project Best Practices.” USAID, Washington, DC.


Wing, Susanna D. 2009. “Exploring Democracy, Women’s Rights, and Legal Reform in
Francophone Africa.” Paper presented at the conference on “Rethinking Development:
Societal Transformations and the Challenges of Governance in Africa and the Middle
East,” Yale University, New Haven, CT.


Women–LEED–Africa (Women’s Legal and Economic Empowerment Database), http://
documents.worldbank.org/query?title=Women+LEED+Africa+Database devel-
oped by Mary Hallward-Driemeier, Tazeen Hasan, Jane Kamangu, Emila Lobti, and
Mark Blackden. Development Economics, World Bank.


World Bank. 2011. World Development Report 2012: Gender Equality and Development.
Washington, DC: World Bank.




Chapter


91


3


Legal Pluralism: Multiple Systems,
Multiple Challenges


Sub-Saharan countries draw their rules and institutions of laws from more than
one normative tradition. In both common and civil law countries, international,
constitutional, and statutory systems of laws coexist to diff erent degrees with
religious and indigenous customary laws and institutions. Th ese religious and
customary laws are oft en part of the formal system—sources of law that are
legally recognized and that have formalized procedural rules and enforcement
provisions. Irrespective of the content of the laws, the very existence of overlap-
ping sources of law introduces uncertainty regarding how strongly particular
rights are protected.


Formal customary law may play a larger role in Africa than elsewhere, but
the issue is not unique to Africa: inconsistent and confl icting sources of law
permeate every legal system in the world. To reduce uncertainty, a legal system
has to have a clear hierarchy regarding which law prevails when a confl ict arises.
To reduce discrimination within a legal system, it is essential that the principle
of nondiscrimination be regarded as paramount and that it supersede confl ict-
ing provisions.


Th is chapter looks at the extent to which countries in the region defi ne this
hierarchy. It uses case law to illustrate how courts have interpreted cases at the
intersections of diff erent sources of law and confl icting provisions on the books.
Case law is itself a formal source of law in common law systems and an integral
part of the legal landscape, as judicial decision making and precedent can shape
rights to property as much as any other source of law. Judicial precedent exists
to a lesser degree in civil law systems. For this reason, this chapter gives more
coverage to case law in a common law framework.


The Role and Interplay of Various Sources of Law


To understand the challenges inherent in a pluralistic legal system, it is helpful
to look at the individual sources of law and how they enhance or restrict the




92 EMPOWERING WOMEN


principles of nondiscrimination and gender equality in both civil and common
law systems.1 Cases in which property is divided on inheritance and divorce
off er insights into how women’s claims to property have evolved or been
restricted by courts as they grapple with legal pluralism. Judges have been called
on to interpret various sources of law. Th eir rulings can either reinforce exist-
ing discriminatory laws, including customary law, or set them aside in favor of
more equitable provisions. As will be seen from the cases cited throughout this
chapter, the approach has oft en been inconsistent, rendering evolution of the
law dependent on the mindset of a particular bench of judges.


Th e cases cited are in areas with important implications for women’s entre-
preneurship. Th ey aff ect women’s access to and control over assets that they can
use directly in their business or as collateral for loans. Th ese laws are critical
because, as chapter 2 shows, when their rights are restricted, women are less
likely to operate as employers.


Appealing to International Law in Domestic Courts
International treaties that have been ratifi ed and are part of the national law
through direct implementation or domesticating legislation can exert a positive
infl uence in overturning historically entrenched legal norms. Domestic courts
in several countries have referred to international conventions such as the
Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW) and the Protocol to the African Charter on Human and Peoples’
Rights on the Rights of Women in Africa as direct authority for setting aside
discriminatory statutory and customary laws.


Lack of direct national implementation is not always a barrier to domestic
courts’ use of treaties. Some judges in Kenya have categorized the CEDAW prin-
ciples as norms of customary international law, which can have direct force in
the national legal system without requiring further legislation:


• In Wachokire (2002), the Chief Magistrates’ Court at Th ika held that a provi-
sion under Kikuyu customary law that deprived unmarried women of equal
inheritance rights violated Section 82(1) of the Constitution, which prohibits
discrimination on the basis of gender. Th e court also held that the provision
violated Article 18(3) of the Banjul charter and Article 15(3) of CEDAW,
which provides for gender equality.


• In Andrew Manunzya Musyoka (2005), the High Court applied the principles
of equality and nondiscrimination in CEDAW to set aside a discriminatory
Kamba custom that held that a daughter is not allowed to inherit from her
father’s estate.


• In Mary Rono v. Jane Rono (2005), the Court of Appeal held that there was no
reasonable basis for drawing a distinction between sons and daughters in deter-
mining inheritance. Th e principles of equality and nondiscrimination prevailed




LEGAL PLURALISM: MULTIPLE SYSTEMS, MULTIPLE CHALLENGES 93


over customary law that disinherited daughters. Th e court applied international
law directly to Kenya, a dualist state, and justifi ed it based on the common law
theory, allowing for application of customary international law and treaty law
where there is no confl ict, even if such laws have not been domesticated.


Using the Constitution to Set Aside Discriminatory Law
Th e constitutional principles of nondiscrimination and gender equality are inte-
gral tools in enabling citizens to challenge discriminatory statutory and cus-
tomary or personal law provisions. Th e principle of nondiscrimination, cited
in every constitution in Africa, is a starting point that can be used creatively
to set aside discriminatory laws. In addition, specifi c constitutional provisions
on gender equality, found in several constitutions in Sub-Saharan Africa, may
facilitate the promotion of proactive policies to achieve equality and enhance
the ability of women’s groups to bring suit against discriminatory laws (Lambert
and Scribner 2008).


Constitutional provisions relating to the right to property and the recogni-
tion of human rights also reinforce women’s legal rights in inheritance and in
registering property in their own names:


• In the Benin Constitutional Court Decision No. DCC 02-144 (2004), Rosine
Vieyra, a member of parliament, successfully challenged the constitutional-
ity of provisions that allowed polygamy in the new Family Code approved
by the National Assembly in June 2002. She argued that the provisions were
discriminatory, violated the constitutional principle of equality between a
man and a woman, and were contrary to the African Charter on Human
and Peoples’ Rights (the Banjul Charter) and the Maputo Protocol on the
Rights of Women in Africa. Th e Family Code was subsequently reviewed
and polygamy outlawed, with benefi cial implications for wives’ inheritance
and the division of marital property.


• In Uganda Association of Women Lawyers and others v. Attorney General
(2002), the Constitutional Court declared provisions of the 1904 Divorce Act
discriminatory and thus unconstitutional where they provided for diff ering
grounds for divorce, recovery of legal costs, fi nancial relief, and alimony for
women and men.2 Th e Act had made divorce more diffi cult for women to
obtain and limited their right to fi nancial relief.


• In Bernado Ephraim v. Holaria Pastory and Another (2001), the High Court
in Tanzania held that women can inherit land, including clan land, even
when Haya customary law bans such inheritance and that they are thus able
to dispose of such land without any discrimination based on gender. Th e
court upheld the constitutional principle of nondiscrimination to the exclu-
sion of Haya customary law.




94 EMPOWERING WOMEN


• In Ndossi v. Ndossi (2001), the High Court in Tanzania held that a widow
was entitled to administer her estate on behalf of her children under the
Constitution, which provides that that “every person is entitled to own prop-
erty and has a right to the protection of that property held in accordance of
the law.” Th e judge further held that Article 9(a) and (f) of the Constitution
recognizes human rights by requiring “that human dignity is preserved and
upheld in accordance with the spirit of the Universal Declaration of Human
Rights,” explaining that this clause generally domesticated human rights
instruments ratifi ed by Tanzania, including the antidiscrimination principles
of CEDAW, Articles 2(b) and (f), and the best interest of the child principle
found in Article 3 of the Convention on the Rights of the Child.


• A coalition of woman’s groups from across the political spectrum in Sudan
opposed an Act passed by the governor of Khartoum as unconstitutional.
Th e Act prohibited women from working aft er 5 p.m. and from participating
in work that “damaged their reputation,” including work in hotels, service
stations, and cafes. Th e case was contested in the Constitutional Court: the
Act was withdrawn and the governor replaced (Badri 2005).


Expanding the Constitutional Power Vested in Certain Courts
Courts in many countries can use the constitution to set aside discriminatory
legislation, but they do not have the authority to change it or refer to alterna-
tive provisions. South Africa and Swaziland are two examples where additional
powers are given to Supreme Courts.


Th e Constitution of South Africa, widely acclaimed as among the most pro-
gressive in the region, subjects all statutory and traditional laws to overarching
constitutional principles of equality and nondiscrimination.3 Moreover, under
the Constitution, the Supreme Court of Appeal and High Courts (or equivalent)
have the power to declare a law or conduct constitutionally invalid and to set
aside discriminatory customary provisions, whether codifi ed or not.4 Th e courts
even have the discretion to refer to nondiscriminatory legislation instead of the
discriminatory provisions that would normally have been applicable.5


Two rulings illustrate the scope of the courts:


• In 2004, the Constitutional Court in Bhe v. Khayelitsha Magistrate and the
President of the Republic of South Africa set aside Section 23 of the Black
Administration Act (1927), which stated that customary law should apply
to the estates of Africans who died intestate—and excluded the application
of the Intestate Succession Act (1987). Th e customary law of succession was
the rule of primogeniture or inheritance by other male relatives. Th e court
concluded that the offi cial system of customary law of succession was incom-
patible with the Bill of Rights and applied Section 1 of the Intestate Succes-
sion Act instead.




LEGAL PLURALISM: MULTIPLE SYSTEMS, MULTIPLE CHALLENGES 95


• In Elizabeth Gumede v. President of South Africa and others (2008), the Con-
stitutional Court held that a rule of customary law under which the hus-
band was the family head and the owner of all family property violated the
wife’s right to dignity and equality, which is protected by the Constitution.
In this case, customary law was codifi ed in the KwaZulu Act and the Natal
Code, which provided that in a customary law marriage, the husband was
the family head and owner of all family law property, which he could use at
his exclusive discretion. Th e Gumedes had married under customary law in
1968. Th ey were therefore excluded from the provisions of the Recognition
Act 2005, which extended the default marital regime of community of prop-
erty to all customary marriages entered into on or aft er November 15, 2005.
Th e Court was able to set aside the off ending provisions of customary law
and the provisions of the Recognition Act, which prevented it from applying
to earlier customary marriages.


Th e courts in Swaziland have even stronger powers: they can change the word-
ing of off ending legislation. Swaziland took a major step toward gender equal-
ity in 2005, when it amended its constitution to include a nondiscrimination
clause.6 In 2010, the High Court allowed women married in community of
property to register property in their own names for the fi rst time.


Th e High Court case of Mary-Joyce Doo Aphane v. Registrar of Deeds, Minister
of Justice and Constitutional Aff airs and the Attorney General (2010) concerned
a couple married under a community of property regime. Th e wife’s request to
register property jointly in their names was not allowed under a provision of
the Deeds Registry Act. Th e High Court upheld Aphane’s request and declared
the provision unconstitutional. Signifi cantly, the judge used her powers under
Section 151(2) of the Constitution that gives the High Court jurisdiction to
enforce fundamental human rights and freedoms guaranteed by the Constitu-
tion to change the wording of the off ending provision to allow registration of
community property by women. Th e Supreme Court in May 2010 upheld the
unconstitutionality of the discriminatory provision, but overturned the High
Court Judge’s decision to “severe” and “read in” the Act on this occasion. It
suspended the declaration of illegality for a year, allowing married women to
register property in the interim, and allowing for Parliament to amend the leg-
islation in the meantime. However, two years later, parliament has not amended
the legislation and there has been no follow-up action in the courts.


As important as this victory was for gender equality in Swaziland, barriers
to land ownership remain. Most women are married under customary law and
are still not legally entitled to register property under their name. Th e court had
the jurisdiction only to set aside the discriminatory provisions that the litigants
asked it to adjudicate on; it could not carry out wholesale reform of the Deeds
Registry Act.




96 EMPOWERING WOMEN


Catalyzing the Eff ect of Impact Litigation
Discriminatory provisions remain in force in many countries; courts can strike
down only a few provisions at a time. Th e aim of “impact litigation” is to stra-
tegically choose cases to bring to the highest courts in order to maximize the
chances of changing the legal precedent in an area of law important to the
aff ected group and its supporters.7 It has a catalytic eff ect on mobilizing reform
movements to pressure governments into comprehensive legislative reform.


Impact litigation that successfully challenges discriminatory laws based on
unconstitutionality in one country can infl uence the interpretation and applica-
tion of constitutional provisions by courts in other countries. For this potential
to be realized, it is important that the case address the key legal issue in question.
A ruling is likely to have a greater eff ect if it aff ects a large class of women, can be
linked to interests of other groups, and captures the attention of the media.


Th e judgment in Uganda Association of Women Lawyers and others v. Attor-
ney General (2002) cited the Tanzanian case of Ephraim v. Pastory (1989) and
the Botswana case of Attorney General of the Republic of Botswana v. Unity Dow
(1994) (described in box 3.2) as support for setting aside discriminatory divorce
laws in the Ugandan case. Drawing on similar challenges in neighboring coun-
tries, in 2009 the Women’s Law Association for Southern Africa fi led a case
before the Constitutional Court of Malawi (Registered Trustees of the Women
and Law in Southern Africa Malawi v. the Attorney General [2009]) arguing
that the failure to recognize nonmonetary contributions under the Married
Women’s Property Act 1882 is discriminatory and thus unconstitutional.


Statutory Law
Diff erent statutes or codes in a country can have confl icting provisions. For
example, in Chad, the French Civil Code of 1958 sets the default marital regime
as community of property, whereas Order O3/INT/ 61 of June 21, 1961, states
that the default regime is a separate property regime. Th e French Civil Code
allows only monogamous marriages, but the 1961 Order permits polygamy
(Center for Reproductive Rights 2003). It is unclear how these confl icting laws
interact in practice.


Reform can lead to more equitable provisions. But discriminatory legislation
persists, in the ways described below.


Preindependence statutory laws are generally more likely to discriminate than
recently draft ed laws. Many countries still have statutes that originated more
than a century ago that were long since replaced or amended in the country of
origin. Th ese earlier statutory laws are more prone to be discriminatory, as they
refl ect the gender attitudes of the era. Th e English Married Women’s Property
Act of 1882 and the Matrimonial Causes Act of 1941 are currently applicable
legislation in Kenya. In Nigeria, the Federal Interpretation Act states that any




LEGAL PLURALISM: MULTIPLE SYSTEMS, MULTIPLE CHALLENGES 97


statute of general application in force in England before January 1, 1900, and
not subsequently replaced by domestic Nigerian law is binding in Nigeria, even
if Britain repealed or amended the law (Emery 2005). With little reform, only a
few anglophone countries statutorily recognize relatively recent concepts, such
as the inclusion of the wife’s nonmonetary contribution to a household’s assets
in determining a settlement following divorce.


Many francophone countries took the French Civil Code of 1958, including
its head-of-household provisions, as their starting point. Many of these coun-
tries retain these provisions on the books, though countries such as Benin have
tackled most of them with family law reforms.


Racially and ethnically based legislation continues to aff ect segments of the pop-
ulation. Antiquated apartheid-era legislation continues to divide populations
according to classifi cations based on ethnic diff erences in Botswana and Namibia.
Diff erent and discriminatory marriage regimes and inheritance provisions still
apply to the population north of the apartheid-era Police Line in Namibia, even
though they have been successfully challenged as unconstitutional (box 3.1).
Default marital regimes are also based on ethnic lines in Botswana, where cus-
tomary law is the default for indigenous Botswana citizens and a separate prop-
erty regime is the default for Botswana citizens of European descent.


Many statutory provisions are inadequate and discriminatory, although statu-
tory legislation off ers some protection. Th e inheritance provisions stipulated
in many countries’ statutory intestacy laws do not enable widows to be self-
suffi cient and maintain their children. Th e underlying assumption, which mir-
rors customary law, is that members of their own family will look aft er them.
In Gabon, a widow receives no share of her husband’s estate if she has children.
She receives a share if she has no children but if she remarries into a family other
than her husband’s, she is deprived of her right to inheritance (Article 692 of the
Penal Code CEDAW Committee Observations regarding UN [2005a]).


A common feature in confl ict and postconfl ict countries is the lack of statutory
legislation in certain sectors, which may stem from several factors. Colonial-era
laws or later legislation enacted by a previous regime may have been repealed by
the incoming government but not replaced. Legislation relating to land, for exam-
ple, may not have been enacted at the time of independence, as it was not required
then. Burundi, for example, has no statutory law governing women’s inheritance
rights, and, under customary law, women cannot inherit land (Kamungi, Oketch,
and Huggins 2004). Niger has been preparing a family code since 1976 but has
yet to adopt it; the status of the French Civil Code of 1804, which applied aft er
independence, is unclear (an order from 1962 states that customary law applies
to marriage and inheritance). Customary law is the only practical alternative, but
in these countries it rarely gives women an equitable share of household assets
(Kamungi, Oketch, and Huggins 2004; Diarra and Monimart 2006).




98 EMPOWERING WOMEN


Women may receive greater protection in marital and inheritance disputes
when they fall under the umbrella of statutory legislation than under customary
law. Th ey may be entitled to ownership of marital property on divorce and in
inheritance, rights usually denied to them in customary law.


In the Nigerian case of Obusez v. Obusez (2001), the brothers of the deceased
argued that under Agbor customary law, the widow was regarded as a chattel to
be inherited and thus could not be an administrator of her deceased husband’s
estate. Th e Court of Appeal confi rmed the lower court’s decision that, as the
widow had been married under the Marriage Act, she was not a chattel and
could therefore administer the estate. It suggested that had she been married
under customary law, Agbor customary law would have applied and she would
indeed have been chattel and barred from taking up letters of administration
(Nwabueze 2010).


BOX 3 .1


Apartheid-Era Legislation in Namibia Continues
to Differentiate among Ethnic Groups
Namibians of European descent are covered by statutory succession and marital prop-
erty laws—statutes that do not apply to the indigenous population. In the case of
Berendt and Another v. Stuurman and Others (2003), the High Court declared that sev-
eral sections of the Native Proclamation 15 of 1928 were unconstitutional. The procla-
mation treated the estates of deceased indigenous Namibians as if they were European
in some circumstances but decreed that their estates should be distributed according
to native law and custom in others. The court gave the government a deadline of June
30, 2005, to replace the legislation. The government passed the Estates and Succes-
sion Amendment Act (2005), but the new law did not change the “native law and
custom” provisions, which generally exclude women and girls from inheritance.


Marital regimes also vary across ethnic groups. For indigenous Namibians married
north of the apartheid-era Police Line, the marital regime continues to be separate
property; in the rest of the country, the regime is community of property. Most black
women live in the poorer rural areas of the north, where Section 17(6) of the Native
Proclamation allows husbands to exert unilateral control over marital property and hus-
bands are not required to obtain the consent of their wives even for transactions con-
cerning the marital home.


These laws have not been repealed, even though the government acknowledges
the pressing need for reform. In essence, statutory laws relating to marriage and inheri-
tance that continue to apply to the Namibian population are based on skin color and
where a person lives.


Source: Legal Assistance Centre and International Women’s Human Rights Clinic 2008.




LEGAL PLURALISM: MULTIPLE SYSTEMS, MULTIPLE CHALLENGES 99


Statutory protections can also be important in protecting women’s rights in
labor and land. Labor laws that prohibit discriminatory practices in the work-
place are integral to women’s entry into and progress in the formal labor market.
Th ese rights are hard to safeguard without statutory protections. If enforced,
land laws that oblige—or at a minimum allow—spouses to title property in
their joint names can change patterns of land ownership (as the case in Ethiopia
described in box 5.2 in chapter 5 illustrates).


Rewriting statutes is not enough to catalyze social change without the paral-
lel strengthening of enforcing institutions. Still, statutory reform that repeals
off ending legislation or promotes equality and the protection of women sets a
benchmark for treating women in society, even if it is not adequately enforced.
Examples include laws in Ghana and Malawi protecting widows from being
evicted from the marital home and penalizing property grabbing by relatives.
Liberia reformed intestacy laws in 2003 (UNHCR 2003). Since reform, widows
married under customary or civil law, who previously did not inherit, have been
entitled to 30 percent of the husband’s estate.


Laws on gender discrimination and equality can be important in enforc-
ing gender rights in the workplace and beyond. In South Africa, the Promo-
tion of Equality and Prevention of Unfair Discrimination Act (2000) places a
positive duty on both state and nonstate actors to redress discrimination. Th e
Sex Discrimination Act (2002) in Mauritius also provides protection against
discrimination. Th e Sex Discrimination Division the government established
in accord with the Act has jurisdiction to make enquiries and determinations
regarding complaints it receives on alleged infringements of the Act. Th e Act
provides various penalties for people judged to have violated its provisions,
but according to the 2006 report of the Convention on the Elimination of All
Forms of Discrimination against Women Committee, enforcement is weak.
Th e division apparently prefers mediation to referring cases for prosecution.
Th e Committee recommended that serious breaches should be forwarded for
prosecution.


Judicial Precedent
Th e principle of judicial precedent obliges a court to follow a ruling made by an
earlier court of equal or superior standing unless the facts of the case before it
can be distinguished. Th is binding nature of case precedent makes it a formal
source of law. Its role is clearest in common law systems; judicial precedent also
exists under various guises in civil law systems, where it arguably plays a less
prominent role.


Judges and magistrates can have wide discretion in interpreting the law,
using tools such as the analysis of legislative intention (that is, the spirit of the
law). Th eir interpretations can have a profound and long-lasting eff ect on a
country’s legal framework (box 3.2).




100 EMPOWERING WOMEN


One area illustrating the power of judicial interpretation is recognition of a
spouse’s nonmonetary contribution to marital assets. In some countries where
the default regime is separate marital property, statutory law is silent on this
issue. As chapter 2 showed, such silence excludes not only the contribution of
household work but also unpaid work in the family enterprise in the division of
marital property. Failure to recognize nonmonetary contributions reduces the
assets a woman has to start or run a business aft er a marriage ends. It denies
women access to assets or businesses to which they contributed during their
marriage but did not have registered in their name.


Th e Married Women’s Property Act of 1882, which applies in several common
law countries, has no specifi c provisions for recognition of nonmonetary contri-
bution. Its applicability to property ownership has been questioned in the face of
domestic laws that govern ownership of property in matters such as contracts.8
Th e courts in Malawi have interpreted the provisions of the Act restrictively, not
recognizing the nonmonetary contribution of the wife on divorce. Property is held
jointly only if both spouses made a direct fi nancial contribution to its acquisition.9
Th e approach of the courts, stated in Nyangulu v. Nyangulu, is that “an inference
of joint ownership of property is not to be made from a mere fact of marriage.”


BOX 3 .2


Using the Constitution to Challenge Gender Discrimination:
The Case of Unity Dow
In the milestone case of Attorney General of the Republic of Botswana v. Unity Dow
(1994), the High Court and the Court of Appeal extended the ambit of the nondiscrim-
ination clause in Botswana’s constitution. The clause outlawed discrimination on sev-
eral grounds but did not specifi cally mention gender. Unity Dow, a citizen of Botswana,
challenged the 1982 Citizenship Law as discriminatory on the grounds that it denied
citizenship to the children of Botswana women married to foreigners.


The High Court held that the Constitution prohibited discrimination on the grounds
of gender and that “the time that women were treated as chattels or were there to
obey the whims and wishes of males is long past, and it would be offensive to modern
thinking and the spirit of the Constitution to fi nd that the Constitution was framed
deliberately to permit discrimination on the grounds of sex.”


Ironically, almost 20 years after the decision, the Constitution still exempts personal
law—including marriage, divorce, and inheritance—from its nondiscrimination provi-
sion. Even so, the Unity Dow ruling may offer scope for a constitutional challenge to
discriminatory provisions of personal law.




LEGAL PLURALISM: MULTIPLE SYSTEMS, MULTIPLE CHALLENGES 101


The lack of a clear regulation in law on the mode of distribution of
marital property on divorce may allow a superior court (or even a lateral
court) to overturn earlier decisions that recognized nonmonetary contri-
butions and set a new precedent. There may also be conflicting precedents
that can allow judges to select the line of argument they prefer, as they did
in Kenya (box 3.3).


In Nigeria, which adopted a 1970 version of the Matrimonial Causes Act
from the United Kingdom, the momentum has moved in the opposite direc-
tion. Although the wording of the Act is more fl exible than the 1941 version
adopted by Kenya and allows the court to make “just and equitable” provi-
sion for the wife, the courts originally took the line that the wife had to show
fi nancial contribution to marital property and provide receipts as evidence.10
But in the 1986 case of Kaffi v. Kaffi , the Court of Appeal held that the wife’s
contribution to marital property could consider the fact that she had taken
care of her husband and family and that the husband consequently enjoyed
the peace of mind to acquire the property.


Th e doctrine of precedent off ers fl exibility, but it also generates uncertainty.
Laws reinforcing judicial precedent are therefore needed to safeguard against
discrimination. Th e existence of an unequivocal law also ensures uniformity
in decisions, thereby contributing to greater certainty in expectations. Clear
language has many benefi ts. In Tanzania, the Law of Marriage Act (1971)
off ers fl exibility and a presumption in favor of equal division of property (box
3.4).11 Zambia enacted a new version of the Matrimonial Causes Act in 2007,
which explicitly recognizes nonmonetary contribution.12


Where statutes are silent, judges can use principles of common law to fi ll
the gaps. Common law was the ancient law of England, based on societal
customs and reinforced by judgments and decrees of the court. It establishes
the importance of judicial precedent and is an important modern-day feature
of common law legal systems.


Common law doctrines give courts some flexibility in offering “just”
solutions to situations not covered by statutory law. One example is the
treatment of committed couples who lived together as if married but did
not have a formal ceremony and did not register their relationship. In
South Africa, courts have applied the common law doctrine of univer-
sal partnership to cohabiting couples and extended it to customary mar-
riages, particularly in cases where legal requirements such as registra-
tion for customary marriages have not been met. The courts have gotten
around the fact that cohabitation is not legally recognized in South Africa
by declaring that an express or implied partnership exists between the
parties. Significantly, this doctrine recognizes nonmonetary contributions




102 EMPOWERING WOMEN


BOX 3 .3


Changing Precedents Regarding the Status
of Marital Property in Kenya
Before 2005, the courts in Kenya have sometimes interpreted the Married Women’s
Property Act and the Matrimonial Causes Act (1941) as securing women’s property
rights on divorce and recognizing nonmonetary contributions in civil, religious, and
customary marriages:


• In Karanja v. Karanja (1976), the High Court rejected the argument that under
Kikuyu customary law, married women do not own property because they have no
independent legal identity. The court applied the Married Women’s Property Act to
award the wife a third of the couple’s property.


• In Kivuitu v. Kivuitu (1991), the Court of Appeal applied the principle of nondis-
crimination and equal protection of the law in recognizing the wife’s nonmonetary
contribution in the form of domestic chores and subsistence farming.


• In Essa v. Essa (1996), the High Court relied on the Married Women’s Property Act
to award property after divorce to a wife married under Islamic law. The court reit-
erated in its earlier judgment in I v. I (1970) that the Married Women’s Property Act
applies equally to Muslims and non-Muslims in Kenya.


• In Omar Said Jaiz v. Naame Ali, the High Court took Kivuitu v. Kivuitu one step far-
ther to rule that property acquired through a joint venture would be considered joint
property even without clear evidence of the extent of actual contribution made by
each spouse (Baraza 2009).


Echaria v. Echaria (2007) was decided by a fi ve-judge bench on the Court of Appeal,
which overturned earlier decisions of the High Court and Court of Appeal on recognition


by women. Four requirements must be met for the universal partnership to
exist:


• Th e partnership must aim to make a profi t.13
• Both parties must contribute to the partnership, either monetarily or in


other ways (by contributing labor or skills, for example).
• Th e partnership must operate for the benefi t of both parties.
• Th ere must be an agreement, either expressly in writing or implied from the


conduct of the parties.


If a universal partnership is established, the property regime is similar to that
of community of property, though the exact distribution of the partnership’s
assets is surmised from the terms of the agreement. It is important for cohabit-
ing couples to draw up a written agreement—either before or during the period
of cohabitation—that sets out the property distribution on separation or death.




LEGAL PLURALISM: MULTIPLE SYSTEMS, MULTIPLE CHALLENGES 103


Th e following cases in Botswana and Zimbabwe illustrate the concept of uni-
versal partnership where the agreement is implied from the conduct of the parties:


• In Mogorosi v. Mogorosi (2008), which originated in the customary courts,
the Court of Appeal in Botswana applied the common law principle of uni-
versal partnership in recognizing the woman’s nonmonetary contribution to
the business incorporated and run by the man with whom she cohabited for
about 15 years. Th e man had paid a customary dowry to the woman’s family.
Th e woman had worked for the business and carried out household duties,
including caring for the couple’s children. Th e court ruled that she was thus
entitled to a 20 percent share of the man’s estate valued at the date at which
the cohabitation ended.


• In Ivy Mbenge v. Jele Mbenge (1996), the Court of Appeal in Botswana awarded
the woman 50 percent of her ex-partner’s assets acquired through their joint
eff ort during the 28 years during which they cohabited. Th e case report


of nonmonetary contributions. The court held that division of property in marriage
would be determined under the general laws of contract in Kenya and that a woman
must demonstrate her monetary contribution. (The requirement of proof of monetary
contribution to matrimonial property had been upheld in the cases of Beatrice Wan-
jiru Kimani v. Evanson Kimani Njoroge [1995] and Tabitha Wangechi Nderitu v. Simon
Nderitu Kariuki [1997], among others.)


In Echaria v. Echaria, the spouses had been married for 23 years. The wife was
university educated and had worked outside the home for some time but had spent
much of her married life looking after the couple’s four children and supporting her
husband, who had risen in the diplomatic service to become an ambassador. On the
family’s return from abroad, the wife worked as a senior education offi cer. In divorce
proceedings, she claimed a 50 percent share of the marital property. The Court of
Appeal awarded her only a 25 percent share, ruling that the “only contribution toward
the acquisition of the property that Mrs. Echaria could have made was by payment of
monthly installments of the loan.” The court went on to state that “merely the status
of marriage does not entitle a spouse to a benefi cial interest of the property registered
in the name of the other nor ... [does] the performance of domestic duties.”


Kenya is a common law country; a judgment by a fi ve-judge bench in the Court
of Appeal is therefore binding on a smaller bench in the Court of Appeal, the High
Court, and all subordinate courts. Exclusion of the wife’s nonmonetary contribution in
Echaria v. Echaria—the current legal position in Kenya—will adversely affect thousands
of women until parliament enacts a new law.


Note: In light of the new Constitution of 2010 and subsequent legislative reform
efforts (such as the Land Act No. 6 of 2012 and the current Matrimonial Property Bill)
the right to nonmonetary contributions is open to reassessment.




104 EMPOWERING WOMEN


BOX 3 .4


Recognition of Nonmonetary Contributions
in Marriage in Tanzania
The courts in Tanzania have generally considered nonmonetary contributions in mar-
riage, not only in statutory but also in customary and religious marriages:


• In Keticia Bgumba v. Thadeo Maguma and Another (1989), the High Court rec-
ognized the nonmonetary contribution of a woman during the two years she had
cohabited with her husband, even though the couple had celebrated no formal or
customary marriage. The court held that the woman had established the existence
of a marriage by cohabitation and repute and that she could still claim a share or
interest in a house in dispute by virtue of Section 160(2) of the Law of Marriage Act.


• In Mohamed Abdallah v. Halima Lisangwe (1988), the marriage was contracted
under Islamic law. The High Court recognized the wife’s clearing of the site where a
house was built as a nonmonetary contribution. The court also observed that during
the time the house was built, the wife bore children, reared them, and took care of
the marital home. These activities freed her husband for his economic activities and
entitled her to the fruits of his labor.


• In Bi Hawa Mohamed v. Ally Sefu (1983), the Court of Appeal recognized the
domestic role of a housewife as a legitimate contribution to marital welfare, thus
entitling the wife to part of that property.


• In Richard Wilham Sawe v. Woitara Richard Sawe (1992), the Court of Appeal held
that, at divorce, marital property should be divided 50–50.


presents no evidence of customary marriage. Th e woman had run various
commercial enterprises, including a cattle post and a general dealer shop,
thereby satisfying the condition of having established a universal partnership.


• In Chapeyama v. Matende (2000), the High Court in Zimbabwe held that a
wife married under customary law for 10 years was entitled to a fair distri-
bution of all assets in the marital house on the breakdown of the marriage.
Th e husband had tried unsuccessfully to overturn the joint registration of the
couple’s house. Th e court held that the application of the concept of a tacit
partnership was fully justifi ed. Th e husband appealed to the Supreme Court,
which dismissed his appeal and recommended a review of marriage laws
specifi cally to recognize unregistered customary marriages (Government of
Zimbabwe 2009).


As these cases show, judicial decision making can be a progressive instrument
for change, interpreting statutes equitably or creatively fi lling in legal ambigui-




LEGAL PLURALISM: MULTIPLE SYSTEMS, MULTIPLE CHALLENGES 105


ties to advance women’s rights. But judges can reinforce the status quo or, as in
Echaria, reverse earlier gains.


To reduce the potential for discrimination, legislators need to craft legis-
lation in harmony with constitutional principles of gender equality or non-
discrimination. In the areas of family law and inheritance, women’s rights to
marital and inheritance property under statute should be unequivocally equal
to those of men.


Customary Law
Customary law forms part of the legal framework in almost every Sub-Saharan
country, as noted in chapter 2. A study of Sierra Leone suggests that up to 85
percent of the population used customary law as part of the formal and informal
legal system (Kane and others 2004).


Customary law is generally not codifi ed (some have argued that this is one
of the features that has allowed it to evolve). But there are exceptions: the 1931
Customary Code of Dahomey in Benin, compiled by French authorities in colo-
nial times, was in force until the new Family Code of 2004 eff ectively repealed
many of its discriminatory provisions (UN 2005b). Some states in South
Africa—such as KwaZulu Natal as the Gumede case illustrates—and Tanzania
have also codifi ed provisions of customary law.


Customary tribunals are normally based in or near villages. Th ey are there-
fore more accessible than the formal statutory courts, which are usually in urban
centers. In some countries, such as Cameroon, they are legally recognized by
the state and part of the formal hierarchy of courts. Cameroon has a mixed legal
system, comprising a civil law system in the francophone part of the country
and a common law system in the anglophone part. Customary courts oper-
ate in both regions. Th e Customary Courts Ordinance establishes customary
courts in the anglophone region. In the francophone region, Article 7(1) and
8(1) of the Decree of 1969 and Article 3 of the Law of 1979 sets out the composi-
tion of traditional courts to comprise a presiding offi cer; a civil servant or local
dignitary, such as a traditional chief with reasonable knowledge of customary
law; and assessors.14 Assessors are elders who have lived for a long time in the
area covered by the jurisdiction of the court and who have been chosen by the
Ministry of Justice as people believed to have both moral integrity and in-depth
knowledge of the customary law they are called on to represent. All parties must
accept the competence of the traditional court for it to have jurisdiction.


In Côte d’Ivoire, village tribunals play a quasi-formal role. Th e constitution
provides for the offi ce of a grand mediator, who decides disputes that cannot be
resolved by traditional means (UN 2007).


In Madagascar, the state recognizes customary tribunals, whose decisions
can be appealed in the formal court system. Th ese tribunals can adjudicate local
village disputes relating to land use, for example. Th ey have been co-opted by




106 EMPOWERING WOMEN


the state as an eff ective instrument in coastal marine resources management
(Rakotoson and Tanner 2006).


Customary courts can also serve as nonstate justice systems. Proceedings are
usually conducted informally, without lawyers and in the local vernacular lan-
guage (formal legal proceedings are conducted in English, French, Portuguese,
or Spanish). Th e costs are low, and decisions are rendered more quickly than
in the formal system. Th e customary system may also be viewed by the local
population as having greater legitimacy.


In Liberia, where long-running civil confl icts incapacitated the already weak
formal justice system, the majority of the population resorted to traditional
dispute settlement mechanisms. Th e types of cases that were most likely to be
tried formally were bribery, property, and land disputes, although even in these
instances the number of cases was very small and the majority of cases that were
tried were tried in informal forums (table 3.1).


Th e adjudication of disputes usually takes a restorative approach—one that
addresses grievances in terms of harm done to the community—rather than
a retributive one. In nomadic pastoralist communities in northern Kenya, for
example, the theft of livestock is seen as a crime against the community. A
restorative approach is taken in which the kin group of the perpetrator com-
pensates the victim and the victim’s kin group. Th e communities prefer to follow
this approach, which helps ease confl ict, restore good relations, and strengthen


Table 3.1 Forums for Resolving Civil Disputes in Liberia, 2008–09


Proportion of all cases taken to


Dispute
Number of


cases
No forum
(percent)


Informal forum
(percent)


Formal forum
(percent)


Bribery and corruption 14 57 29 14


Debt dispute 1,497 67 31 2


Family and marital dispute 788 58 41 1


Child custody 21 62 38 0


Child and wife neglect 181 59 41 0


Divorce and separation 131 34 61 5


Other 455 64 35 1


Labor dispute 157 65 34 1


Land dispute 430 32 60 8


Property dispute 68 53 37 10


Witchcraft 227 56 41 4


Total 3,181 59 38 3


Source: Isser, Lubkemann, and N’Tow 2009.




LEGAL PLURALISM: MULTIPLE SYSTEMS, MULTIPLE CHALLENGES 107


kin relations, than to pursue the matter in the formal court system (Chopra
2008). Th e element of compromise inherent in the customary law system can
reinforce social norms that discriminate on the basis of gender, age, or marital
status (Penal Reform International 2000).


Informal customary courts, though not offi cially recognized, continue to
operate in many civil law countries, including Benin, Burkina Faso, Gabon,
and Guinea Bissau. Diffi culties of access to formal systems allow these systems
to continue to play an important role in civil law countries (Frémont 2009).


In common law countries, both formal and informal systems may refer to
customary law. In some countries, such as Botswana, Nigeria, South Africa, and
Zambia, specialized customary courts have been established under formal law.
In others, such as Kenya, magistrates’ courts have the jurisdiction to rule on
customary law matters. In almost all common law countries, informal custom-
ary courts that are not offi cially recognized by the state continue to operate.


Advantages of customary law for women. Th e range of customary law is vast,
and provisions of customary law can sometimes help women access property.
Under the same Yoruba customary law in Nigeria highlighted as discrimina-
tory in Akinnubi v. Akinnubi (1997) below, women can be selected as heads
of households and, as head, can control the arrangements for their husband’s
burial.15 Under Yoruba customary law, both sons and daughters can inherit land
(see Amusan v. Amusan 2002).


Customary law can also allow the marginalized and poor to voice their griev-
ances where the formal system is out of reach because of cost, inaccessibility, or
lack of local legitimacy because it is seen as corrupt, ineffi cient, or captured by
the elite.16 Kenya and Sierra Leone provide two examples. User rights granted to
women by customary law in Kenya can give protection to marginalized women
who are, for all practical purposes, disenfranchised from the statutory land-
titling system. In Sierra Leone, where formal statutory laws on maintenance are
inadequate, customary law may reinforce the obligation of the husband’s family
to provide for his children on divorce, especially when the ex-husband cannot
be located (Kent 2007).


Customary law is not static; it can evolve to refl ect changing societal norms.
Formal courts in some countries have recognized these changes.


Under customary law in Botswana, aft er divorce, marital property is allo-
cated based on the way it was acquired. In Moisakomo v. Moisakamo (1980), the
High Court held that the wealth was produced principally by the eff ort of the
wife and her use of property she had brought to the marriage. Th e chief justice
made some observations about customary law:


Custom of course plays an important role in how people choose to live but
changing social and economic conditions aff ect and mould customs. One




108 EMPOWERING WOMEN


of the changes is increasing urbanization. In the rapidly changing condi-
tions of social life that is occurring in Africa, the need to examine the social
utility of each rule of Customary Law is imperative. A rule that may have
been just and suitable in a subsistence farming community may work grave
hardship in a commercial farming economy (Griffi ths 1983, 157).


In Malawi, customary law in some societies require the husband to move to
their wife’s village on marriage (a custom known as matrilocality). No bride
price (sometimes known as lobola) is paid to the bride’s family. Under custom-
ary law, the household property is jointly owned and subject to joint control.
Th e marital home belongs to the wife.


Customary law in some matrilocal societies can be particularly favorable to
women. In some countries, land can devolve to women or girls in a community
under matrilocal inheritance rights (in others, such as Ghana, inheritance fol-
lows female bloodlines but the male relative inherits). Matrilocal societies exist
in the Comoros Islands, Malawi, Zambia, and elsewhere in Africa. 17


In Malawi, divorce is easier to obtain by both spouses in these matrilocal
societies. Custody of the children goes to the wife, and the house remains
under her ownership. Each spouse retains all its personal belongings, includ-
ing livestock and traditional gift s given by the other spouse. Household prop-
erty is equally divided, and the husband is entitled to remove doors, windows,
and valuable fi xtures that do not aff ect the main structure if he provided for
them. Land cultivated by the husband is returned to the wife and, in essence,
to her family. Inheritance also passes through female off spring (Mwambene
2005). By contrast, in Malawi’s patrilineal societies, under customary law the
wife requires her guardian’s assistance to pursue divorce proceedings.18


Th e courts in Malawi have recognized customary property rights. In Poya
v. Poya (1979), the High Court in Malawi held that the marital home built by
the husband in the wife’s village belonged to the wife under customary law. In
recent years, some courts have taken a modifi ed approach to customary law in
matrilocal societies. Matrimonial property has been divided equally between
the spouses under customary law on divorce.19


In Shilubana and Others v. Nwamitwa (2008), the Constitutional Court of
South Africa stressed the importance of allowing traditional authorities the
power to develop customary law to bring it in line with the contemporary needs
of their communities:


As has been repeatedly emphasised by this and other courts, customary
law is by its nature a constantly evolving system. Under pre-democratic
colonial and apartheid regimes, this development was frustrated and cus-
tomary law stagnated. Th is stagnation should not continue, and the free
development by communities of their own laws to meet the needs of a




LEGAL PLURALISM: MULTIPLE SYSTEMS, MULTIPLE CHALLENGES 109


rapidly changing society must be respected and facilitated. . . . “Living”
customary law is not always easy to establish and it may sometimes not be
possible to determine a new position with clarity. However, where there
is a dispute over the law of a community, parties should strive to place
evidence of the present practice of that community before the courts, and
courts have a duty to examine the law in the context of a community and
to acknowledge developments if they have occurred (page 22).


In Zambia, local courts have the jurisdiction to decide on matters of custom-
ary law in relation to family disputes. According to customary traditions in
the region, families agree on a bride price and a verbal agreement is made,
witnessed by the families. Th ere is no written record. In divorce, women do
not have the right to demand anything, and, in some customs, the children are
taken away from the mother. According to a local lawyer, Manfred Chibanda,
“It is precisely for these reasons that men prefer customary unions . . . because
the mind-set is I do not want my wife to get anything of mine, if she leaves my
house, she goes the way she came” (IRIN 2005).


In a landmark case in December 2005, a local court ruled that women mar-
ried under customary law have the right to a share of marital property on
divorce or husband’s death. In Martha Mwanamwalye v. Collins Mwanamwalye
(2005), Magistrate Mwaba Chanda stated that “notwithstanding that the par-
ties married under customary law, justice demands that when a marriage has
broken down, the parties should be put in equal position to avoid any of them
falling into destitution.” Another woman who had been married under custom-
ary law for 30 years but was awarded nothing in her settlement is using the case
to make a fresh claim (IRIN 2005).


Disadvantages of customary law for women. Customary law can also dis-
criminate against women and be unsupportive of gender equality (Ayuko and
Chopra 2008a, 2008b). Under Article 127 of the Code of Dahomey 1931 in
Benin (repealed only in 2004), “a woman has no legal rights. Only in practice
is she given some importance. She is oft en in charge of the administration
of the household and can create some savings through the sale of her items.
She is part of a man’s property and heritage.” Under this Code, women were
considered legal minors and did not have the right to inherit from their par-
ents or spouses. Th e Benin United Nations Human Development Report 2003
reports that 231 of 419 women included in their study had been denied loans
specifi cally for these reasons and were forced to resort to informal fi nancing.


Th e Modogashe Declaration, drawn up to help bring peace to tribes in north-
ern Kenya, sets out the traditional laws of these communities. According to the
declaration, killing a man engenders compensation of 100 camels or cows, and
killing a woman involves half that amount. When some women protested, they




110 EMPOWERING WOMEN


were told that this was the traditional way and were overruled by the men in the
community (Chopra 2008).


Customary rights to succession are patrilineal in many communities (see, for
example, Bhe v. Khayelitsha Magistrate and the President of the Republic of South
Africa 2004). A widow may even be “inherited” by her brother-in-law. If she
opposes the marriage, her only option is to leave her home, with her children
and livestock retained by the husband’s family. Sons also inherit in preference
to daughters (Ayuko and Chopra 2008a).


Courts adjudicating family and inheritance disputes have sometimes upheld
discriminatory provisions:


• In the case of Ashu v. Ashu (1986), Cameroon’s High Court held that the wife
was not entitled to her share of property because she herself was property
according to customary law.


• In Akinnubi v. Akinnubi (1997), Nigeria’s Supreme Court upheld the Court of
Appeal’s judgment that a widow married under Yoruba customary law could
not administer her deceased husband’s estate. It observed that “under Yoruba
customary law, a widow under an intestacy is regarded as part of the estate
of her deceased husband to be administered or inherited by the deceased’s
family; she could neither be entitled to apply for a grant of letters of admin-
istration nor to be appointed as co-administratrix.”


• In Scholastica Benedict v. Martin Benedict (1993), Tanzania’s Court of Appeal
decided, aft er 17 years of litigation, to uphold the supremacy of the rights
of the male heir under customary law to a property occupied by the second
wife and her unmarried daughter. Th e second wife and her daughter had
been living on the property in question for more than 15 years. Th eir right to
continue living there was successfully challenged by the eldest son of the fi rst
wife, even though he lived in a separate house with his mother and family.
Th e second wife and daughter were evicted from the property, and owner-
ship was transferred to the son.


Religious Law
A country’s colonial history infl uenced personal laws and their codifi cation.
Various anglophone countries in Africa adopted marriage acts pertaining to
Muslim and Hindu marriages that the British codifi ed in India. (Chapter 2 dis-
cusses specifi c aspects of Sharia law.)


Several countries exempt religious laws from constitutional provisions of
nondiscrimination, making it impossible for women to appeal decisions of a
religious court on the basis of discrimination. Kenya’s new Constitution, for
example, removed the exemption from nondiscrimination for customary law
but retains the exemption for religious laws.




LEGAL PLURALISM: MULTIPLE SYSTEMS, MULTIPLE CHALLENGES 111


Countries have adopted diff erent approaches to the application of religious
laws and to the individual’s ability to choose between legal systems:


• In the Gambian case of Saika Saidy Th eresa Saide, Albert Shrunsole and
Jukba Saidy (1974), the testator was a Muslim who willed all his property to
his wife. His brother challenged the will. Th e Supreme Court ruled that the
deceased could not dispose of his property under the Wills Act (1837) and
that it had to be bequeathed according to Sharia law.


• In the Cameroonian case of Baba Iyayi v. Hadija Aninatoou (2000), the court
ruled that French laws of inheritance supplanted Sharia law, because the
deceased had been married under civil law.


• In the Cameroonian case of Gbaron v. Yaccoumba v. Anemena Suzanne v.
Mbombo Asang v. Nadam Emile (1997), the Court of Appeal rejected the
widow’s claim for an entitlement from her deceased husband’s estate under
Sharia law and instead applied customary law, which did not give inheritance
rights to wives.


Th e statutory requirement of women’s consent to the jurisdiction of the Sharia
court may act as a safeguard for women who prefer to opt out of a religious law
regime (see the Mrs. Kedija Beshir v. 3rd Naiba Court [2004] case in Ethiopia,
described later). In practice, however, many women may be unable to resist
social pressure not to sidestep religious courts.


Challenges of Multiple Legal Systems
and Inconsistent Laws


Th e presence of customary, statutory, and religious laws in all Sub-Saharan
countries, whether formal or informal, creates a number of challenges. First,
the very existence of multiple systems of law and sources of jurisprudence pro-
vides space and opportunity for discrimination and bias by raising questions
as to which systems prevail in which circumstances. Second, even if plural-
ity gives discretion to participants to select the system that off ers the greatest
advantages—through forum shopping (discussed at the end of this section)—
this choice is not equally available to everyone in practice. A plural legal system
that does not make nondiscrimination its cornerstone will always be disadvan-
tageous to women.


Which Court and Which Law?
Jurisdictional issues can arise as to the appropriate forum for hearings, which
can itself be the basis for litigation. Plural legal systems can fail to defi ne juris-
dictions, and some judicial offi cers may be unaware of their jurisdiction’s limits




112 EMPOWERING WOMEN


(Isser, Lubkemann, and N’Tow 2009). Local council courts (formal, state-
recognized customary courts) in Uganda are on record as routinely deciding
cases outside their jurisdiction because they lacked knowledge of formal law
and could not identify which types of cases were covered solely by customary
law and were within their ambit (Penal Reform International 2000).


Even where traditional leaders are aware of the limits of their jurisdiction,
they may feel pressured by the local community to decide on the dispute or
believe that they are better equipped to deal with the case. In some instances,
the motivation behind claiming jurisdiction is simply income generated by fees
for adjudicating disputes (Penal Reform International 2000).


In 2004, the House of Federation of Ethiopia (the upper house of the Ethio-
pian parliament) approved the Council of Constitutional Inquiry’s decision that
a woman had the right to choose between a civil court and a Sharia court (Ash-
enafi and Tadesse 2005). Th e case, concerning an inheritance dispute, had begun
in the Sharia Court of fi rst instance, which had decided the case and overridden
the woman’s objections to the court’s jurisdiction. With the support of the Ethio-
pian Women Lawyers Association, the applicant, Kedija Bashir, appealed all the
way up to the Supreme Sharia Court and fi nally to the Federal Supreme Court
(Ashenafi and Tadesse 2005).


Even when the jurisdiction of the court is uncontested, the applicable law may
generate further disputes. Th e formal legal system uses various tools, such as the
repugnancy test and the mode of life test (described below), to determine whether
statutory civil law, customary law, or religious law applies. Because it oft en does
so case by case, the same or similar sets of facts can lead to confl icting decisions,
making outcomes complex and unpredictable. One way to avoid such outcomes
is to encourage women to register their customary marriages where statutory law
allows for registration and specifi cally grants greater inheritance rights or a more
equitable share of marital assets to a spouse than under customary law.


Repugnancy Test
Th e repugnancy test is a legal doctrine that dates from the British colonial era.
It appears in the statutes of several anglophone countries in Africa. Its original
purpose was to provide colonial administrators and courts with the ability to
challenge and refuse to enforce customary laws on the grounds that they were
repugnant to natural justice, equity, or good conscience. Repugnancy test pro-
visions carried over aft er independence in Kenya, Malawi, Nigeria, Tanzania,
and Uganda.


Even where customary law is exempt from the constitutional principle
of nondiscrimination, courts have used the repugnancy test to set aside dis-
criminatory customary provisions. As a tool for countering discrimination,
the test can be inconsistent, however, because the interpretation of what is
contrary to natural justice, equity, or good conscience can be subjective and




LEGAL PLURALISM: MULTIPLE SYSTEMS, MULTIPLE CHALLENGES 113


vary from one court to another, as the case of Mojekwu v. Mojekwu (1997)
illustrates (box 3.5).


Courts in some countries have hesitated to use the repugnancy test to reject
provisions of religious law. In the case of Saika Saidy Th eresa Saide, Albert
Shrunsole and Jukba Saidy (1974), the Gambian court held that the repugnancy
test applied only to customary law and not to Sharia law.


Use of the repugnancy test is also sensitive because of its associations with
the colonial past and the sense that indigenous culture was subject to foreign
oversight (Banda 2003). For these reasons, Ghana and Tanzania repealed the
statute aft er independence and use alternative tools and terminology to counter
inequity.


In South Africa, the approach taken by the courts has been to discard the
repugnancy test and make constitutionality the ultimate arbitrator. In Mabuza
v. Mbatha (2003), Judge President John Hlophe commented, “Th e starting point
is to accept the supremacy of the Constitution and that law and/or conduct
inconsistent with therewith is invalid. Should the Court in any given case come
to the conclusion that the customary practice or conduct in question cannot
withstand constitutional scrutiny, an appropriate order in that regard should be
made. Th e former approach, which recognizes African law only to the extent
that it is not repugnant to the principles of public policy or natural justice, is
fl awed. It is unconstitutional.”


Mode of Life Test
Th e mode of life test is a statutory tool courts may use to determine whether a
person, because of changes in his or her lifestyle, is still subject to customary


BOX 3 .5


Same Facts, Different Conclusions:
The Case of Mojekwu v. Mojekwu
In 1997, Nigeria’s Court of Appeal rejected as repugnant the Oliekpe custom that dis-
entitles a daughter from inheriting the property of the father where no son survives
him. In 2004, the Supreme Court overturned this decision on the grounds that the
parties had not challenged the custom’s validity. The judge criticized the lower court’s
fi nding of repugnancy, stating that the “language used made the pronouncement so
general and so far-reaching that it seems to avail at and is capable of causing strong
feelings against all customs which fail to recognize a role for women which with due
respect is not justifi able.”


Source: FIDH 2008.




114 EMPOWERING WOMEN


law. In divorce cases, for example, the courts have held that customary law does
not apply where the parties were educated and lived in urban settings.


In Molomo v. Molomo (1979), Botswana’s High Court applied the mode
of life exemption under Section 2 of the Dissolution of African Marriage Act
(Griffi ths 1983).20 In applying the exemption, the judge emphasized that the
parties were educated, had traveled abroad, lived in a modern dwelling in the
capital city, and had business interests. Confl icting decisions have arisen on
whether the mode of life exemption applies, however, and factually similar cases
have had diff erent outcomes.


Forum Shopping
Forum shopping by people with power usually disadvantages women, most of
whom lack access to the necessary resources (Odinkalu 2005).21 However, this
is not always the case. In Niger, Muslim women have claimed land rights under
Sharia law that have been denied under customary law. Th ey have been able
to claim these rights without incurring social stigma, as the wider community
endorses religious values (Diarra and Monimart 2006). Most women in Sub-
Saharan Africa, however, lack the ability to pick and choose between systems.


Conclusion


Legal pluralism brings additional challenges to ensuring equal rights for
women and reinforces the need for certain principles in the constitution, such
as nondiscrimination, to prevail and guide all sources of law. As many areas of
intersection between statutory and customary law pertain to how the rights
of women and men may diff er, they are of prime concern for ensuring that
women’s property rights are protected and they can pursue the same economic
opportunities open to men.


De jure legal economic rights are not static. It is not just that statutes on the
books are reformed over time—legal decisions are also instrumental in defi ning
legal economic rights. As the many examples in this chapter illustrate, judicial
interpretations vary across countries and even over time in the same country.
Case law can help push for more progressive decisions, but the best way to
reduce uncertainty in economic rights is to pass clear legislation and eff ectively
enforce the law.


Customary law also evolves. It cannot be ignored, because it touches the lives
of most of the population in many parts of Africa. By promoting positive core
values in local traditions, such as protection of women, and recognizing and
encouraging the evolution of customs, customary law can play an important
role in empowering women and giving them equitable rights to property.




LEGAL PLURALISM: MULTIPLE SYSTEMS, MULTIPLE CHALLENGES 115


Cases Cited
Adeyemi v. Adeyemi (1985), Suit No. CB/354D/85
Akinnubi v. Akinnubi (1997), 2 NLWR
Amusan v. Amusan (2002), FWLR 1385
Andrew Manunzya Musyoka (2005), eKLR,7 (HC at Machakos)
Ashu v. Ashu (1986), BCA/62/86
Attorney General v. Aphane [2010], SZSC 32
Attorney General of the Republic of Botswana v. Unity Dow (1994), Case Report Court


of Appeal (6) BCLR 1
Baba Iyayi v. Hadija Aninatoou (2000), Arrêt No. 083 of 32 March 2000
Beatrice Wanjiru Kimani v. Evanson Kimani Njoroge (1995) [1998], eKLR
Benin Constitutional Court Decision No. DCC 02-144 (2004), AHRLR (beCC 20202)
Berendt and Another v. Stuurman and Others (2003), NR 81 (HC)
Bernado Ephraim v. Holaria Pastory and Another (2001), AHRLR 236
Bhe v. Khayelitsha Magistrate and the President of the Republic of South Africa (2004),


Case CCT 50/03
Bi Hawa Mohamed v. Ally Sefu (1983), TLR 32
Chapeyama v. Matende (2000), (2) 356 (s)
Echaria v. Echaria (2007), Eklr KECA 1
Elizabeth Gumede v. President of South Africa and others (2008), Case CCT 50/08 ZACC 23
Ephraim v. Pastory (2001), AHRLR 236
Essa v. Essa (1996), EA 53
Gbaron v. Yaccoumba v. Anemena Suzanne v. Mbombo Asang v. Nadam Emile (1997),


Arrêt No. 002/c23, October
Georgina Mazunyane v. Rodney Chalera (2004), 76 Civil Cause No. 75 of 2004, Mulun-


guzi Magistrate Court (unreported)
I v. I (1970)
Ivy Mbenge v. Jele Mbenge (1996), BWCA 26; [1996] BLR 142 (CA), February 5
Kaffi v. Kaffi (1986), cited in 3 Nigeria Weekly Law Report, part 2, p. 175
Karanja v. Karanja (1976) [2008], 1 KLR (G&F) 171; (1976–80) 1 KLR 389
Mrs. Kedija Beshir v. 3rd Naiba Court (2004), House of the Federation, Appeal of Mrs.


Kedija Beshir against being judged by Sharia Court and decision of House of Federa-
tion by which decision of 3rd Naiba Court Repealed (2004), 9 Federal Supreme Court
Cassation Division File No. 12400/1999, May 15


Keticia Bgumba v. Th adeo Maguma and Another (1989), High Court, Mwanza, Mwalu-
sanya J., Civil App. No. 8/89, July 18




116 EMPOWERING WOMEN


Kivuitu v. Kivuitu (1991), 2 KAR 241
Mabuza v. Mbatha (2003), (4) SA 218 (C)
Malinki v. Malinki (1994) MC 9MLR 441
Mary-Joyce Doo Aphane v. Registrar of Deeds, Minister of Justice and Constitutional


Aff airs and the Attorney General (2010), Civil Case No. 383/2009
Mary Rono v. Jane Rono (2005) 1KLR (G&F)
Martha Mwanamwalye v. Collins Mwanamwalye (2005), cited in INSTRAW review news


ticker ‘’Zambia—ruling for women married under customary law—Property Rights,’’
http://www.un-instraw.org/revista/hypermail/alltickers/en/0138


Mogorosi v. Mogorosi (2008), BWCA 18
Mohamed Abdallah v. Halima Lisangwe (1988), TLR 197 Tanzania
Moisakomo v. Moisakamo (1980), MC 106, cited in “Legal Duality: Confl ict or Concord


in Botswana?” Journal of African Law 150 (1983)
Mojekwu v. Mojekwu (1997), 7 NWLR: Pt 512: 283
Molomo v. Molomo (1979), 80 BLR 250
Mtegha v. Mtegha (1994), MC No. 9 of 1994
Ndossi v. Ndossi (2001), High Court Civil Appeal No. 13 of 2001, High Court of Tanzania


at Dar Es Salaam, February 13
Nyangulu v. Nyangulu, 10 Malawi Law Reports 435
Obusez v. Obusez (2001), 15 N.W.L.R. 377
Omar Said Jaiz v Naame Ali, cited in “Family Law Reforms in Kenya: An Overview,”


paper presented by Nancy Baraza at the Heinrich Böll Foundation’s Gender Forum,
Nairobi, April 30, 2009


Poya v. Poya (1979), Civil Appeal No. 38 of 1979 N.T.A.C.
Registered Trustees of the Women and Law in Southern Africa Malawi v. the Attorney


General (2009), Constitutional Case No. 3 of 2009
Richard Wilham Sawe v. Woitara Richard Sawe (1992), Civil Appeal No. 38 of 1992,


TZCA, 9
Saika Saidy v. Th eresa Saide, Albert Shrunsole, and Jukba Saidy (1973), Supreme Court


Civil Appeal No.4/73 NS 148
Scholastica Benedict v. Martin Benedict (1993), Court of Appeal of Tanzania at Mwanza,


Civil Appeal No. 26 of 1988 (unreported)
Shilubana and Others v. Nwamitwa (2008), (CCT 03/07) (2008) ZACC 9; 2008 (9) BCLR


914 (CC); 2009 (2) SA 66 (CC), June 4
Tabitha Wangechi Nderitu v. Simon Nderitu Kariuki (1997) [1998], eKLR
Uganda Association of Women Lawyers and others v. Attorney General (2002) (Constitu-


tional Petition No. 2 of 2003), (2004) UGCC 1
Wachokire Succession (2002) Cause No. 192 of 2000
White v. White (2001), 1AC 596 (HL)




LEGAL PLURALISM: MULTIPLE SYSTEMS, MULTIPLE CHALLENGES 117


Notes
1. Additional sources of law, such as executive orders, binding statements of policy, and


bylaws, are not reviewed in detail.
2. Th e Act allowed only the husband to claim damages from the alleged co-adulterer


respondent and to assert a claim on the wife’s property. Th e wife could not claim
similar damages where the husband committed adultery. Only the wife, however,
was allowed to claim alimony if her petition was granted. Both provisions were
declared discriminatory.


3. Other countries, including Burkina Faso, Cameroon, Côte d’Ivoire, Ethiopia, Gabon,
Malawi, Nigeria, Rwanda, Sierra Leone, and Swaziland, have similar constitutional
provisions. Enforcement of the constitutional provisions to override discriminatory
legislation varies across countries. Section 211(3) of the South African Constitution
makes customary law subject to the Constitution, Section 9 of which establishes the
right to equality and nondiscrimination.


4. Th e declaration of invalidity has to be confi rmed by the Constitutional Court under
Section 172 of the Constitution.


5. Th e section is Section 172 of the South African Constitution: “Powers of courts in
constitutional matters 1. When deciding a constitutional matter within its power, a
court (a) must declare that any law or conduct that is inconsistent with the Consti-
tution is invalid to the extent of its inconsistency; and (b) may make any order that
is just and equitable, including (i) an order limiting the retrospective eff ect of the
declaration of invalidity; and (ii) an order suspending the declaration of invalidity
for any period and on any conditions, to allow the competent authority to correct
the defect.”


6. Sections 20 and 28 of the Swaziland Constitution set out equality in the eyes of the
law.


7. Criteria for a good test law case include the ability to show clear standing to bring
the case and a fact pattern that addresses the issues and is compelling, raises the legal
issues of interest, and provides a strong case for a favorable ruling.


8. Th e United Kingdom has reviewed these laws. A landmark House of Lords judgment
in the case of White v. White in 2001, which overturned decades of legal precedent,
provides for the equal splitting of marital property.


9. In both Malinki v. Malinki and Mtegha v. Mtegha, the magistrates’ court held that
a spouse wishing to claim a share of property not in his or her name had to show
fi nancial contribution. Contributions to maintenance of property items, housekeep-
ing, and child care were not suffi cient.


10. In Adeyemi v. Adeyemi, the wife failed to tender receipts to show a fi nancial contri-
bution to the property acquired during the marriage. Th e lack of proof disentitled
her from receiving a share of the property.


11. Under section 114 (1) of Tanzania’s Law of Marriage Act (1971), “Th e court shall
have power, when granting or subsequent to the grant of a decree of separation or
divorce, to order the division between the parties of any assets acquired by them
during the marriage by their joint eff orts or to order the sale of any such asset and
the division between the parties of the proceeds of sale. Th e court . . . (d) shall incline
towards equality of division” (emphasis added).




118 EMPOWERING WOMEN


12. Section 56 (1) of Zambia’s Matrimonial Causes Act (2007) allows the court to con-
sider several factors when determining fi nancial relief on divorce, including “(f)
the contributions made by each of the parties to the welfare of the family, including
any contribution made by looking aft er the home or caring for the family” (emphasis
added).


13. Marriages are not businesses; this criterion is taken to mean that the participating
parties are seeking to maintain themselves fi nancially or acquire assets over time.


14. Assessors are also appointed in common law customary courts.
15. But, as highlighted in the Akinnubi case, a widow who is not the head of her house-


hold may be regarded as chattel (Nwabueze 2010).
16. Preexisting tenure systems based on usage rights may protect the interests of par-


ticularly vulnerable groups, such as indigenous communities, urban slum dwellers,
and marginal settlements, better than formal titling processes (Delville 2000; Adler,
Porter, and Woolcock 2008).


17. Article 153 of the Inheritance Code of the Comoros sets out the matrilineal Man-
yahuli custom as follows: “Manyahuli is a custom that is uniquely observed in the
Comoros Island. Manyahuli attributes to girls the land or the family house. Th e fol-
lowing are excluded from the Manyahuli: boys, grandsons, brothers, male cousins,
uncles, husband, and wife. Male children cannot dispose Manyahuli property but
can only enjoy and administer it.” Article 157 mandates that “a woman to whom the
title of Manyahuli has been recognized will be able to dispose completely without
the intervention of third parties.”


18. Under patrilineal customary law in Malawi, the guardian has to repay the bride
wealth that was given, which may make him reluctant to support the wife.


19. In Georgina Mazunyane v. Rodney Chalera (2004), the magistrates’ court held that
matrimonial property should be divided equitably in customary marriages. In this
case, matrimonial property was divided equally.


20. It is not clear to what extent the statutory exemption still applies aft er the Married
Women’s Property Act came into force. Th e case law on the issues is confl icting.


21. Educated women in higher income groups and with extensive networks may also be
able to forum shop (Griffi ths 1998).


References
Adler, Daniel, Doug J. Porter, and Michael Woolcock. 2008. “Legal Pluralism and Equity:


Some Refl ections on Land Reform in Cambodia.” Justice for the Poor Briefi ng Note.
World Bank, Washington, DC.


Ashenafi , Meaza, and Zenebeworke Tadesse. 2005. “Women, HIV/AIDS, Property and
Inheritance Rights: Th e Case of Ethiopia.” United Nations Development Programme,
New York.


Ayuko, Bonita, and Tanja Chopra. 2008a. “Th e Illusion of Inclusion: Women’s Access to
Right in Northern Kenya.” Legal Resources Foundation Trust, Nairobi.


———. 2008b. “Th e Mystery of Capital Formation in Sub-Saharan Africa: Women, Prop-
erty Rights and Customary Law.” World Development 36 (7): 1223–46.


Badri, Balghis. 2005. “Feminist Perspectives in the Sudan.” Paper presented at the work-
shop “Feminist Perspectives,” Free University of Berlin, May 26–27.




LEGAL PLURALISM: MULTIPLE SYSTEMS, MULTIPLE CHALLENGES 119


Banda, Fareda. 2003. “Global Standards: Local Values.” International Journal of Law,
Policy and the Family 17 (1): 1.


Baraza, Nancy. 2009. “Family Law Reforms in Kenya: An Overview.” Paper presented at
the Heinrich Böll Foundation’s Gender Forum, Nairobi, April 30.


Center for Reproductive Rights. 2003. “Women of the World: Laws and Policies Aff ect-
ing their Reproductive Lives—Francophone Africa.” Center for Reproductive Rights,
New York.


Chopra, Tanja. 2008. “Building Informal Justice in Northern Kenya.” Legal Resources
Foundation Trust, Nairobi.


Delville, Philippe L. 2000. “Harmonising Formal Law and Customary Land Rights in
French-Speaking West Africa.” In Evolving Land Rights, Policy and Tenure in Africa,
ed. Camilla Toulmin and Julian Quan, 97–121. London: Department for International
Development.


Diarra, Marthe, and Marie Monimart. 2006. “Landless Women, Hopeless Women: Gen-
der, Land and Decentralisation in Niger.” IIED Issues Paper 143, International Insti-
tute for Environment and Development, London.


Emery, Vanessa. 2005. “Women’s Inheritance Rights in Nigeria: Transformative Prac-
tices.” University of Toronto, Faculty of Law, Toronto.


FIDH (International Federation for Human Rights). 2008. “Th e Nigeria NGO Coalition
Shadow Report to the CEDAW Committee.” FIDH, Paris.


Frémont, Jacques. 2009. “Legal Pluralism, Customary Law and Human Rights in Fran-
cophone African Countries.” Victoria University of Wellington Law Review 40 (1):
149–65.


Government of Zimbabwe. 2009. “Zimbabwe: Combined Report of the Republic of Zim-
babwe in Terms of the Convention on the Elimination of all Forms of Discrimination
Against Women.” Government of Zimbabwe, Harare.


Griffi ths, Anne. 1983. “Legal Duality: Confl ict or Concord in Botswana?” Journal of
African Law 27 (2): 150–61.


———. 1998. “Legal Pluralism in Botswana: Women’s Access to Law.” Journal of Legal
Pluralism and Unoffi cial Law 42: 123–39.


IRIN (Integrated Regional Information Networks). 2005. “Zambia: Humanitar-
ian News and Analysis.” December 21, 2005. http://www.irinnews.org/country
.aspx?country=zm.


Isser, Deborah H., Stephen C. Lubkemann, and Saah N’Tow. 2009. Looking for Justice:
Liberian Experiences with and Perceptions of Local Justice Options. Washington, DC:
United States Institute of Peace.


Kamungi, Prisca Mbura, Johnstone Summit Oketch, and Chris Huggins. 2004. “Land
Access and the Return and Resettlement of IDPs and the Refugees in Burundi.” In
From the Ground Up: Land Rights, Confl ict and Peace in Sub-Saharan Africa, ed. Chris
Huggins and Jenny Glover. 195–267. Pretoria: Institute of Security Studies.


Kane, Minneh, Keith Mackiggan, Chris Mburu, Ibrahim Gassama, Emma Morley, and
Christian Eldon. 2004. “Sierra Leone: Legal and Judicial Sector Assessment.” World
Bank, Legal Vice Presidency, Washington, DC.




120 EMPOWERING WOMEN


Kent, Allison D. 2007. “Custody, Maintenance, and Succession: Th e Internalization of
Women’s and Children’s Rights under Customary Law in Africa.” Michigan Journal of
International Law 28 (2): 507.


Lambert, Priscilla, and Druscilla Scribner. 2008. “Gender Matters: A Case Study Analysis
of Constitutional Provisions.” Paper presented at the annual meeting of the American
Political Science Association, Boston, August 28.


Legal Assistance Centre and International Women’s Human Rights Clinic. 2008. “Sup-
plementary Submission to the Committee on Racial Discrimination: Supplementing
Namibia’s 2007 Country Report.” Georgetown University Law Center, Washington,
DC.


Mwambene, Lea. 2005. “Divorce in Matrilineal Customary Law Marriage in Malawi:
A Comparative Analysis with the Patrilineal Customary Law Marriage in South
Africa.” University of the Western Cape, Cape Town, South Africa.


Nwabueze, Remigius N. 2010. “Securing Widows’ Sepulchral Rights through the Nige-
rian Constitution.” Harvard Human Rights Journal 23 (1): 141–55.


Odinkalu, Chidi A. 2005. “Pluralism and the Fulfi llment of Justice Needs in Africa.”
Africa Governance Monitoring and Advocacy Project, Open Society Institute, New
York.


Penal Reform International. 2000. Access to Justice in Sub-Saharan Africa: Th e Role of
Traditional and Informal Justice Systems. London: Astron Printers.


Rakotoson, Lalaina R., and Kathryn Tanner. 2006. “Community-Based Governance of
Coastal Zone and Marine Resources in Madagascar.” Ocean & Coastal Management
49 (11): 855–72.


UN (United Nations). 2003. Benin United Nations Human Development Report 2003.
New York: United Nations.


———. 2005a. Committee on the Elimination of Discrimination against Women, Observa-
tion Finales: Gabon. CEDAW/C/GAB/CC/2–5, New York.


———. 2005b. Committee on the Elimination of Discrimination against Women Th irty-
Th ird Session 5–22 July 2005, Concluding Comments: Benin. CEDAW/C/BEN/CO/1-3,
UN, New York.


———. 2007. Côte d’Ivoire Public Administration Country Profi le. Department of Eco-
nomic and Social Aff airs, Division of Public Administration and Development Man-
agement, UN, New York.


UNHCR (United Nations Refugee Agency). 2003. “An Act to Govern the Devolution of
Estates and Establish Rights of Inheritance for Spouses of Both Statutory and Custom-
ary Marriages.” National Legislative Bodies, UNHCR, New York.




Chapter


121


4


Women’s Rights in Practice:
Constraints to Accessing Justice


Enshrining rights in laws and constitutions is an important fi rst step, as chapter
2 showed. But having them on the books is not suffi cient to ensure that they are
actually enjoyed in practice.


Th is chapter examines the gaps between de jure and de facto economic rights
for women in Sub-Saharan Africa. It focuses on how the judicial and custom-
ary legal systems play out in practice and how easy (or hard) it is for women to
access justice. At issue is how the formal judicial or customary systems support
de jure rights, whether based in statutory or formal customary law. Issues of
custom, tradition, and informal dispute resolution mechanisms enter in only
insofar as they aff ect the likely access to formal customary law proceedings or
judicial courts.


Th e plurality of laws off ers choice, but in practice nearly all legal systems treat
women and men diff erently, and women’s access to equitable justice remains a
challenge (box 4.1). Some factors aff ecting access are gender specifi c, such as the
greater social pressure women face not to bring disputes into the judicial sys-
tem, diff erences in access resulting from women having less mobility and time
than men, and the discriminatory outcomes and lack of gender sensitization in
both formal and customary legal systems. Other factors, such as aff ordability of
justice or lack of awareness of legal rights, are common to men and women from
the poorer sectors of society, but they can take longer to rectify for women, who
may be marginalized in their own communities.


Th e chapter begins with formal judicial systems before turning to custom-
ary systems of justice. Judicial systems can be undermined through lack of
resources, popular concerns about legitimacy, and restriction of access to the
urban elite. Customary systems, in theory more accessible, may not off er the
same opportunities for justice to women as to men, and they, too, may be cap-
tured by the local elite.




122 EMPOWERING WOMEN


Formal Judicial Systems in Practice


Many formal judicial systems in Sub-Saharan Africa suff er from a severe lack of
resources, rendering them unable to enforce the laws on the books. State fund-
ing of court systems can represent less than 1 percent of the government bud-
get. Th e number of judges is oft en as low as 1 per 100,000 people (by contrast,
New Zealand has 250 lawyers per 100,000 people, Spain has 445, and Brazil
has almost 500). Kenya has a backlog of about 1 million cases, 300,000 of them
before the High Court in Nairobi (Machuhi 2007; Muriuki 2007).


Even if a woman secures a favorable judgment, enforcement mechanisms are
oft en weak, suff er from bureaucratic delays, and are prone to tactical blocking
strategies by the opposing party (box 4.2). Th ese problems reinforce a general
lack of trust in the system that leaves many women reluctant to start a process
that, even if successful, may not deliver practical results. But weak enforcement
may also work to women’s disadvantage in some cases, as discriminatory laws
are similarly undermined if they are not implemented.


Institutional Shortcomings
Too few women and a lack of gender sensitivity. Africa’s legal systems suff er
from several shortcomings. One is the challenges women face in accessing the


BOX 4.1


Shortcomings of the Justice System
from the Chief Justice in Ghana
Some people working in the justice system, including offi cials at the highest levels, are
acutely aware of the challenges women face in accessing justice. The Chief Justice of
Ghana has called for efforts by stakeholders, including the judiciary, to tackle the biases
within the justice sector, noting the following:


In many countries, and more particularly in Africa, where the illiteracy rate is
quite high, the justice system has never been kind to women; it fails them. The
obstacles, both formal and informal, that women encounter in their attempt
to access justice are quite numerous. Most national constitutions, laws and
international conventions, instruments, protocols, etc. seek to promote equality
between men and women, but the reality is still a mirage. Although there are
constitutional and other statutory provisions that on paper afford women a fair
measure of protection, polices, procedures and practices often prevent women
from the full and equal enjoyment of these rights and privileges and hinder
them from accessing justice.


Source: Wood 2008, 8.




WOMEN’S RIGHTS IN PRACTICE: CONSTRAINTS TO ACCESSING JUSTICE 123


law and legal precedents, without which they may not be aware of their formal
economic rights. But in many countries, there is a more fundamental problem:
legal professionals, including lawyers and judges themselves, may not be aware
of the law or of the rights contained in their country’s constitution. Th ere is
limited publication and dissemination of laws—evident in the eff orts needed
to collect the data for Women–LEED–Africa. Th e availability of case law to the
legal profession is also shockingly limited. Th ese problems stem partly from the
weak communication infrastructure between provincial courts and courts in
urban centers as well as from inadequate training.


Other problems include the dearth of women in the legal system and the
lack of gender sensitivity. The number of female judges and other senior
legal officers is low nearly everywhere in Sub-Saharan Africa (table 4.1).
Female judges are not necessarily more sensitive to gender-based discrimi-
nation, though it may be significant that the landmark case of Mary-Joyce
Doo Aphane in 2010, which overturned decades of barriers to land registra-
tion by women married in community of property, was decided by the only
appointed female High Court judge in Swaziland. (The case is discussed in
chapter 3.)


In many countries, the judiciary is male dominated and patriarchal (box
4.3 illustrates some notable exceptions). Women may be reluctant to access the
formal system if they believe that the prospect of an impartial hearing is remote,
especially if they regard the system as corrupt and ineffi cient. Gender insensi-
tivity can extend to court employees such as clerks and ushers, who infl uence
court procedure (table 4.2).


BOX 4.2


Delaying and Denying Justice in Ghana
Once a case gets to court, the backlog of cases may mean that it takes years to resolve.
These backlogs delay—and often deny—justice, as the case of Rita Charlotte Eshon in
Ghana reveals.


After her husband died, Eshon applied for a grant of letters of administration, to
which the husband’s family objected. After seven years in court, she fi nally obtained
a judgment in her favor. In the meantime, however, the family had harvested the
coconuts from the farm, which was no longer productive. It had also been collecting
rent for the house and defi ed a court order to pay the rent to the court for Eshon’s
benefi t. The family appealed the decision to the High Court, further delaying the
case.


Source: Fenrich and Higgins 2002.




124 EMPOWERING WOMEN


Table 4.1 Number of Male and Female Judges in Kenya, 2009


Court Total Male Female


High Court 51 32 19


Court of Appeal 12 12 0


Source: Kamangu 2010.
Note: Data are as of June 2010. In April 2010, the only female Court of Appeal Judge, Lady Justice Joyce
Aluoch, was appointed to the International Criminal Court at The Hague.


Table 4.2 Number of Male and Female Magistrates and Court Officers in Cameroon, 2009


Type of court or
judicial offi cer Total Male Female


Magistrates’ court 826 642 184


Bailiffs and process servers 319 257 62


Source: Lobti 2010.


BOX 4.3


Women Are Participating at Senior Levels
of the Legal Profession in Several Countries
A signifi cant number of women were heading legal institutions in several countries in
Africa in 2009. In Botswana, the Attorney-General, Dr. Athaliah Molokomme, was the
founding head of the Gender Unit at the Secretariat of the Southern African Develop-
ment Community. In Ghana, the Chief Justice, the Acting Inspector General of Police,
the Director of Immigration, and the Attorney General/Minister of Justice of Ghana
were all women. In Liberia, Professor Christiana Tah was the Minister of Justice and
Attorney General.


The Southern African Development Community (SADC) Protocol on Gender and
Development set a target of 50 percent representation of women in politics and deci-
sion-making positions at all levels by 2015. Statistics from SADC countries show some
advancement toward that goal, with more progress at lower levels of courts than at
higher levels. In 2009, 67 percent of regional court presidents in Mauritius, 44 percent
of regional court judges in South Africa, and 43 percent of judges of industrial courts in
Botswana were women. Zimbabwe had achieved gender parity at the level of labor court
presidents, and Tanzania and Mauritius had attained parity at the magistrate level, where
the share of women was 49 percent in Botswana, 43 percent in Namibia, 42 percent in
Lesotho, 41 percent in Zimbabwe, and 30 percent in South Africa. In Tanzania, 56 per-
cent of judges on both the Court of Appeal and the High Court were women.


Source: SADC 2009.




WOMEN’S RIGHTS IN PRACTICE: CONSTRAINTS TO ACCESSING JUSTICE 125


Challenges to Access
A range of constraints limit women’s access to the legal system in Africa includ-
ing lack of aff ordability, lack of awareness of legal rights, and discouragement
by social pressure.


Lack of aff ordability. Filing a claim entails many costs, such as court fees, which
act as a fi nancial barrier. Some countries charge a range of administrative fees,
including charges for investigative work and the paper used for depositions. Bribes
may also be needed to have a claim heard (Isser, Lubkemann, and N’Tow 2009).


Th e ratio of lawyers to the general population is generally low, refl ecting
capacity constraints and the inadequate system of legal education. Malawi has
77 lawyers for its population of 11 million people (USAID 2009). Sierra Leone
has about 100 practicing lawyers for its population of 5.5 million people, and
90 of them are based in Freetown (Maru 2006). Most lawyers are based in cities,
and their fees are prohibitive for the rural poor, particularly women. Legal aid
schemes are rare. And even where nongovernmental organizations are operat-
ing, women’s lack of awareness may prevent them from approaching them.


A 2009 study in Ethiopia found that in civil cases in the Federal Courts of
First Instance, particularly family law cases, women were more likely than men
to fi le suits (fi gure 4.1). Women were able to access the legal system because
of reforms that improved the effi ciency of the court system and dramatically
reduced costs by no longer requiring a party to be represented by a lawyer (a
reform based partly on the dearth of lawyers) and reducing the costs of fi ling
(Hammergren and Mitiku 2010). Th e impact of these reforms can be seen in
the striking increase in the use of these courts over time. Progress still has to
be made in narrowing the gender gaps in non–family law cases, such as com-
mercial and labor law cases, particularly in relation to the low number of cases
taken to the higher and superior courts.


Th e share of female plaintiff s is much lower in higher courts, because on aver-
age, women’s claims are of lower monetary value and women are less likely than
men to appeal (Rodríguez 2000).1 Th e lack of legal representation may also aff ect
the quality of legal outcomes for women in some cases. Th e ability of women to
represent themselves eff ectively will depend on their capacity and the complexity
of the legal process.


Magistrates’ courts can be more accessible to the general population than
higher courts, because they extend outside capital cities. Th e law usually limits
their jurisdiction to a monetary ceiling, however, which land claims can exceed.
A plaintiff who initiates a claim in a magistrates’ court risks a decision in which
the court rules that it has no jurisdiction to hear the claim, which must instead
be heard in the High Court. Having already wasted time and money, plain-
tiff s—particularly women—may fi nd that starting anew in a court that may be
far from home is both intimidating and fi nancially onerous.




126 EMPOWERING WOMEN


Lack of awareness of legal rights. Many women are unaware of statutory rights
they may have under divorce, inheritance, or land laws. Especially in rural areas,
many women are not educated and have never interacted with any part of the
formal legal system. In addition, the language of the statutes and court proce-
dures—English, French, Portuguese, or Spanish—is rarely their mother tongue.


Botswana attempted to rectify this situation by simplifying and translating
laws aff ecting women into local languages and circulating a handbook. Stan-
dard court forms in English were translated into Setswana and included in the
appendix. Th e handbook was distributed free to social workers, educators, and
women’s groups (Molokomme 1990). Distribution of the handbook represents a
step in the right direction. It needs to be accompanied by parallel services, such
as the provision of legal aid to poor women.


Lack of familiarity with court processes, common to all new court users, is
a disadvantage. Women may not know that it can be advantageous to appear in
person, for example, rather than submit written depositions.


Social pressure. Immediate family members, in-laws, and the wider local
community oft en discourage women from pursuing claims in court. As Unity


Figure 4.1 The Number of Female Plaintiffs in Ethiopia Has Been Rising—But Male Plaintiffs
Still Dominate in Higher and Superior Courts
(number of individual plaintiffs in civil cases, by gender, 2005/06–2008/09)


N
um


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2005/06 2006/07 2007/08


Men Women


2008/09


0


2,500


5,000


7,500


10,000


Source: Hammergren and Mitiku 2010.




WOMEN’S RIGHTS IN PRACTICE: CONSTRAINTS TO ACCESSING JUSTICE 127


Dow, who successfully challenged Botswana’s discriminatory nationality laws,
said, “Th e Traditionalists charged that I was infl uenced by foreign ideas and
that I was seeking to change their culture. Many women distanced themselves
from me” (Dow 2001, 326–27) (see box 3.2 in chapter 3). Women may come
under heavy social pressure not to disturb the status quo; if they do, they and
their children may be ostracized, harassed, stigmatized, or subjected to violence
(Harrington and Chopra 2010).


Customary Systems in Practice


Women in Africa face multiple constraints in accessing justice in customary
legal systems. Although customary law may be geographically and culturally
more accessible to women, their experience in customary institutions still dif-
fers greatly from that of men, in both customary tribunals and informal tradi-
tional practices.


Institutional Shortcomings
Customary systems in Africa suff er from many shortcomings. Problems include
the small number of women decision makers in customary courts, the weak
autonomy of some customary courts, corruption and favoritism, and the fact
that some customary courts have failed to keep up with evolving customary
practices.


Dearth of women decision makers in customary courts. Women have tradi-
tionally been excluded from adjudicating matters of customary law. Th ey are
therefore unable to infl uence its evolution (Ayuko and Chopra 2008).


A 2007 analysis of Sierra Leone’s local court system—an institution that has
legal authority to adjudicate cases of customary law—revealed the small num-
ber of women working in and using the system (Koroma 2007). Court members
were appointed from each chiefdom: of 123 members surveyed, only 7 were
women. Of 30 court clerks, only 1 was a woman. And most parties to the cases
were men.


Some countries have attempted to redress the imbalance through state leg-
islation, which may set a minimum quota for female representation on bodies
such as local council courts (box 4.4).2 But it is unclear how—or whether—
these provisions are enforced in practice or whether women in these bodies can
really challenge discriminatory practices.


Some customary systems do involve women as leaders. In the Shilubana case
in South Africa (2008), the Constitutional Court respected the decision of the
traditional authority to break with custom and appoint a female chief for the
fi rst time in the history of the traditional Valoyi community in Limpopo. In
2001, Botswana appointed it fi rst female Paramount Chief (box 4.5)




128 EMPOWERING WOMEN


Weak autonomy of customary courts. Th e village chief who serves as the adju-
dicator in the customary court is oft en also in charge of many other adminis-
trative functions and economic decisions in village life (Gauri 2009). As well as
adjudicating disputes, the village chief may also be responsible for making the
rules, collecting taxes, and distributing resources. If he is not directly responsible
for these activities, members of his family may be. Th e village chief is generally
physically and socially closer to the claimant than a judge in a state or federal
court would be and can generally intervene in her daily life and networks with
greater ease. Women may be intimidated in approaching a local leader, who can
potentially negatively aff ect their everyday life, to settle their disputes.


Corruption and favoritism. When a dispute is unresolved, a claimant may
need to access the hierarchy of customary courts or councils. Some claim-
ants have the right to appeal to the formal courts, but the local leader can
sometimes block the appeal. In this case, the claimant can do little to force the
issue. Women generally have little infl uence persuading a village chief to sub-
mit a dispute to more powerful authorities (box 4.6). And even if a case does
go higher, the papers or claim can be fi xed (through bribes, for example) to
secure the outcome desired by the local chief. In addition, customary law can
be applied unfairly, and favoritism or abuse of sanctions, such as excessive use
of fi nes, may be used (Maru 2006).


BOX 4.4


The Experience of Women Councillors
in Local Customary Courts in Uganda
Local council courts in Uganda are formal state-recognized customary courts. By law,
at least 30 percent of councillor judges must be women. The Local Government Act
requires that the executive committee of the local council courts include at least one
woman.


The effect of this law has reportedly been somewhat muted by discriminatory prac-
tices by judges. According to one female court member, woman on these councils are
rarely consulted, and their views are not taken seriously when they share them.


Court sessions normally last for several hours and take place outside offi ce hours.
These hours make it harder for women to participate, as they are usually burdened
with domestic responsibilities. There have been ongoing efforts to address these con-
cerns. Operational guidelines for these courts that cover human rights and gender
sensitivity training have been developed and translated into local languages.


Source: Twinomugisha and Kibuka 1997; Penal Reform International 2000; Ellis, Manuel, and Blackden


2006.




WOMEN’S RIGHTS IN PRACTICE: CONSTRAINTS TO ACCESSING JUSTICE 129


BOX 4.5


Making History: Botswana’s First Female Paramount Chief
Botswana achieved a milestone in 2001 when the elders of the Balete people elected
Mosadi Seboko the fi rst female Paramount Chief. She was elected following the death
of her father and brother, the preceding chiefs. Initially, the elders resisted her appoint-
ment, on the grounds that custom dictated that only men could rule. At a meeting of
a kgotla (a community council that also functions as a customary law court) attended
by hundreds of people, Seboko argued that she should be appointed on the strength
of the Botswana constitution, which guarantees freedom from discrimination. Her
appointment marked an extraordinary change in a tribe that until relatively recently did
not allow women even to attend kgotla meetings.


As one of the eight Paramount Chiefs in Botswana, Seboko presides over com-
munity disputes in her 30,000 member tribe. Since being elected, she has highlighted
women’s issues, such as domestic violence (she divorced her husband on this basis) and
women’s sexual rights.


Three of Botswana’s 15 chiefs are now women. As members of the House of Chiefs,
which Seboko once headed, they advise the government on custom and tribal property.


Source: Matemba 2005.


BOX 4.6


Nowhere to Turn: Women’s Complaints
of Harassment in Malawi
Women can be especially vulnerable to pressure from local village chiefs, and they have
limited recourse to higher authorities outside the village. They often lack the networks
to counter unlawful land-grabbing and other breaches of their rights by local leaders.
As one woman commented:


When my husband chased me [from my land], I knew this was a violation
of my rights. Now, the Chief is perpetuating this same violation because he
seems to have now grown an interest in my very small piece of land. He is giv-
ing me so much pressure that I am now at a loss as to where to take my com-
plaint, since this is the very same Chief who helped me when I complained to
him after my husband chased me away.


Source: NIZA 2009, 33.




130 EMPOWERING WOMEN


Failure of customary courts to keep up with evolving customary prac-
tices. Urbanization, the weakened role of communal resources in daily life,
and the growth of the market economy are driving change in many villages in
Africa. Th ese practices may be evolving more rapidly than customary courts
are willing to acknowledge. For example, customary laws in Botswana tra-
ditionally excluded women from inheriting property. But a 2009 study of
Tlokweng, a peri-urban area adjoining the capital, Gaborone, suggests that
married daughters can now claim a share of their parents’ estate and that equal
sharing of property between siblings of both genders is common. Community
elders’ view of customary practices has not kept up with these changes. If
family members contest an estate, the courts in Tlokweng are likely to apply
traditional customary law, which gives the bulk of property to the oldest son
(Kalabamu 2009).


Challenges to Access
Women too oft en on the margins. Traditional justice mechanisms (including
religious courts) can marginalize and exclude the landless and women, espe-
cially young, unmarried women. Most customary courts are adjudicated by
and tend to favor men in their decision making. Marital disputes, including
disputes with implications for control over assets, may be settled in ways that
stop husbands from losing face, even when they are obviously in the wrong—
an approach that is rarely taken with women. Women may be unable to voice
their grievances directly, having to rely instead on the male head of the family
to decide whether to bring the grievance to the elders’ attention. In addition, a
woman may have no right to speak unless directed to do so.3


If a woman is from an outside clan or lineage, her standing in the village
may well be diminished even further. And as customary courts are by their very
nature localized, they are less equipped to resolve disputes in which the parties
are from diff erent ethnic backgrounds.


A 2007 analysis of the local courts in Sierra Leone revealed that most of the
cases were civil and a signifi cant number involved women. Many cases involved
men’s failure to pay child support or a man having an aff air with another man’s
wife. In most of these cases, both parties were men, with the aff ected women
not party to the lawsuit.


Most of the female litigants in Botswana who managed to overturn the sta-
tus quo in customary courts had a wide range of resources, including educa-
tion, fi nancial stability, social status, and extensive networks (Griffi ths 2002).
Interviews by anthropologists and sociologists provide evidence from other
settings that suggests that these resources are also crucial in gaining acceptance
of women as decision makers in traditional communities. Too oft en wom-
en’s relative lack of economic power is reinforced by receiving less favorable




WOMEN’S RIGHTS IN PRACTICE: CONSTRAINTS TO ACCESSING JUSTICE 131


treatment in traditional forums for dispute resolutions (Schärf and others 2002;
Ayuko and Chopra 2008).


Religious courts can expand access—but can be biased. Religious courts are
likely to be gender biased and patriarchal in their decisions, given their all-male
composition (there are no female kadhis [judges] in Africa).4 Women’s experi-
ences in religious courts vary. In Tanzania, many women are reluctant to take
family disputes involving maintenance, custody, or divorce to the BAWAKTA
committees, the central arbiters of religious law by the state, which operate as
courts of fi rst instance (trial courts).5 Most women view these committees as
resisting reform and generally favoring men. Th ey are also reluctant to pursue
claims in the secular magistrates’ courts, suggesting that women in Tanzania are
marginalized from the justice system (Hirsh 2009).


By contrast, Kenya’s kadhi court system, which is under the close supervi-
sion of secular courts, is used predominately by women, who win most of the
cases. Women view these judges as younger and less traditional than the local
elders—and more sympathetic to women. Th e kadhis are civil servants and thus
accountable to the state; they come from outside the local community, off ering
a more neutral forum for dispute settlement than local elders, who are more
prone to belittle or prejudge women’s complaints (Hirsh 2009).


Th e diff erences in women’s perceptions in Tanzania and Kenya highlight
how the application of religious laws varies. It also illustrates the importance of
accountability mechanisms. For some women, religious courts may be the sole
venue with any legitimacy; any biases in these tribunals may thus completely
exclude them from the justice system.


Conclusion


In both formal and customary systems, women face challenges in asserting their
claims to household assets and land. In formal systems, statutory codes may be
discriminatory; they need to be reformed. In addition, problems of legitimacy
persist, because of corruption and the weakness of enforcement mechanisms.


Women oft en perceive customary systems as having greater legitimacy,
but they have traditionally been excluded from exerting infl uence in these
systems, resulting in discriminatory outcomes. Th ese outcomes oft en come to
the fore in inheritance disputes, particularly where land is involved. Custom-
ary rules of inheritance that favor male heirs and the husband’s family over
the wife’s oft en reinforce the dependency of women on the goodwill of male
family members.


One way of establishing a framework of accountability is to empower women
to assert their claims in both legal frameworks. Building awareness of their




132 EMPOWERING WOMEN


rights is essential, as is promoting informal and formal networks, such as wom-
en’s cooperatives and professional associations. Improved access to justice is
possible for women, but it rarely happens without networks, resources, and
coordinated advocacy.


Cases Cited
Attorney General of the Republic of Botswana v. Unity Dow (1994), Case Report Court of


Appeal (6) BCLR 1, pp. 326–27
Shilubana and Others v. Nwamitwa (2008), (CCT 03/07) (2008) ZACC 9; 2008 (9) BCLR


914 (CC); 2009 (2) SA 66 (CC), June 4


Notes
1. Th e lower monetary value of claims by women may be explained by women’s lack of


confi dence in pursuing claims other than family law actions such as child support
(Rodríguez 2000).


2. Tanzania’s 1999 Village Land Act established village land councils, in which three of
the seven council members had to be women.


3. Studies that substantiate these points include Ayuko and Chopra 2008; Cotula 2007;
Das and Maru 2009, who analyze the shalish (informal community justice) system
in Bangladesh; and Kane, Oloka-Onyango, and Tejan-Cole 2005.


4. Malaysia’s appointment of its fi rst women Sharia court judges in 2010 could pave the
way for more women.


5. BAWAKTA was a national Muslim organization that originated in a broad ethnic
base in Tanzania.


References
Ayuko, Bonita, and Tanja Chopra. 2008. “Th e Illusion of Inclusion: Women’s Access to


Right in Northern Kenya.” Legal Resources Foundation Trust, Nairobi.
Cotula, Lorenzo. 2007. Gender and Law: Women’s Rights in Agriculture (rev. 1). FAO


Legislative Study 76, Food and Agriculture Organization of the United Nations, Rome.
Das, Maitreya, and Vivek Maru. 2009. Framing Local Confl ict and Justice in Bangladesh.


Policy Research Working Paper 5781, Sustainable Development Department, World
Bank, Washington, DC.


Dow, Justice Unity. 2001. “How the Global Informs the Local: Th e Botswana Citizenship
Case.” Health Care for Women International 22 (4): 319–31.


Ellis, Amanda, Claire Manuel, and Mark Blackden. 2006. Gender and Economic Growth
in Uganda: Unleashing the Power of Women. p. 68. Washington, DC: World Bank.


Fenrich, Jeanmarie, and Tracy E. Higgins. 2002. “Promise Unfulfi lled: Law, Culture,
and Women’s Inheritance Rights in Ghana.” Fordham International Law Journal 25:
259–341.


Gauri, Varun. 2009. “How Do Local-Level Legal Institutions Promote Development?”
Justice and Development Working Paper Series 6, World Bank, Washington, DC.




WOMEN’S RIGHTS IN PRACTICE: CONSTRAINTS TO ACCESSING JUSTICE 133


Griffi ths, Anne. 2002. “Women’s Worlds, Siblings in Dispute over Inheritance: A View
from Botswana.” Africa Today 49 (1): 61–82.


Hammergren, Linn, and Sintayehu Mitiku. 2010. “Uses and Users of Justice in Africa:
Th e Case of Ethiopia’s Federal Courts.” Report 57988, World Bank, Washington, DC.


Harrington, Andrew, and Tanja Chopra. 2010. “Arguing Traditions: Denying Kenya’s
Women Access to Land Rights.” Justice for the Poor Research Report 2/2010, World
Bank, Washington, DC.


Hirsh, Susan. 2009. “State Intervention in Muslim Family Law in Kenya and Tanzania:
Applications in the Gender Context.” In Muslim Family Law in Sub-Saharan Africa,
ed. Shamil Jeppie, Ebrahim Moosa, and Richard Roberts, part II, chapter 10, 315–17.
Chicago: University of Chicago Press.


Isser, Deborah H., Stephen C. Lubkemann, and Saah N’Tow. 2009. Looking for Justice:
Liberian Experiences with and Perceptions of Local Justice Options. Washington, DC:
United States Institute of Peace.


Kalabamu, Faustin T. 2009. “Towards Egalitarian Inheritance Rights in Botswana: Th e
Case of Tlokweng.” Development Southern Africa 26 (2): 209–23.


Kamangu, Jane. 2010. “Note on Women’s Participation in the Judiciary in Kenya,” Back-
ground paper prepared for this study.


Kane, Minneh, J. Oloka-Onyango, and Abdul Tejan-Cole. 2005. “Reassessing Custom-
ary Law Systems as a Vehicle for Providing Equitable Access to Justice for the Poor.”
Paper presented at the conference “New Frontiers of Social Policy,” Arusha, Tanzania,
December 12–15.


Koroma, Braima. 2007. “Local Courts Record Analysis Survey in Sierra Leone.” Justice
Sector Development Program and Justice for the Poor Program, World Bank, Washing-
ton, DC.


Lobti, Emilia. 2010. “Note on Women’s Participation in the Judiciary in Cameroon,”
Background paper prepared for this study.


Machuhi, Eunice. 2007. “Kenya: One Million Cases Pending in Courts—CJ.” All Africa,
August 8. http://allafrica.com/stories/200708071187.html.


Maru, Vivek. 2006. “Between Law and Society: Paralegals and the Provision of Justice
Services in Sierra Leone and Worldwide.” Yale Journal of International Law 31 (2):
426–76.


Matemba, Yonah H. 2005. “A Chief Called ‘Woman’: Historical Perspectives on the
Changing Face of Bogosi (Chieft ainship) in Botswana, 1834–2004.” JENdA: A Journal
of Culture and African Women Studies 7: 18–29.


Molokomme, Athaliah. 1991. “Disseminating Family Law Reforms: Some Lessons from
Botswana.” Journal of Legal Pluralism and Unoffi cial Law 30: 303–29.


Muriuki, Albert. 2007. “Kenya: Slow Judicial System a Major Obstacle to Growth.” All
Africa, October 2. http://allafrica.com/stories/200710021003.html.


NIZA (Netherlands Institute for Southern Africa) and ActionAid International.
2009. Women’s Land Rights in Southern Africa: Consolidated Baseline Findings from
Malawi, Mozambique, South Africa, Zambia, and Zimbabwe. Amsterdam: NIZA and
ActionAid.




134 EMPOWERING WOMEN


Penal Reform International. 2000. Access to Justice in Sub-Saharan Africa: Th e Role of
Traditional and Informal Justice Systems, 66–67. London: Astron Printers.


Rodríguez, Marcela V. 2000. Empowering Women: An Assessment of Legal Aid under
Ecuador’s Judicial Reform Project. Washington, DC: World Bank.


SADC (Southern African Development Community). 2009. “Towards Gender Parity in
2015 in SADC: Did You Know Th at....” Gender News 1 (9)3.


Schärf, Wilfried, Chikosa Banda, Ricky Röntsch, Desmond Kaunda, and Rosemary Sha-
piro. 2002. “Access to Justice for the Poor of Malawi? Appraisal of Access to Justice
Provided to the Poor of Malawi by the Lower Subordinate Courts and the Customary
Justice Forums.” Department for International Development, Governance and Social
Development Resource Centre, London.


Twinomugisha and Kibuka. 1997. Good Governance and Easing Social Tensions in
Uganda: Studies of Operations and Justice of Local Councils. New York: United Nations
Development Programme.


USAID (U.S. Agency for International Development). 2009. Africa Regional Rule of Law
Status Review. Washington, DC: USAID.


Women–LEED–Africa (Women’s Legal and Economic Empowerment Database),
http://documents.worldbank.org/query?title=Women+LEED+Africa+Database
developed by Mary Hallward-Driemeier, Tazeen Hasan, Jane Kamangu, Emila Lobti,
and Mark Blackden. Development Economics, World Bank.


Wood, Georgina. 2008. “Th e Role of the Judiciary in Promoting Gender Justice in
Africa.” Report on the Partners for Gender Justice Conference, Accra, Ghana, Novem-
ber 19–21.




Chapter


135


5


The Way Forward


Th e preceding chapters have shown the complexity of the legal framework in
Sub-Saharan African countries and how multiple legal systems, combined with
de facto practice, can enhance or undermine women’s access to and control over
property. Ultimately, a woman’s potential ability to engage in any form of eco-
nomic activity derives from a baseline of assets for investments and the capac-
ity to independently determine how to use them. Discriminatory inheritance
practices and formal legal restrictions applying only to women’s legal capacity,
employment outside the home, and administration of personal assets are bar-
riers that the state too oft en condones. Th e customary and social norms from
which these laws derive represent a still deeper challenge to reform.


Th is chapter discusses ways to address the many sources of gender gaps in
formal legal and economic rights that aff ect women’s ability to access assets. It
provides general guidelines and illustrates how particular countries are imple-
menting them. Th e discussion examines four areas: strengthening the substance
of the law, ensuring that existing benefi ts are accessible and secured, and educat-
ing women about their rights and empowering them to exercise them. Th e set
of recommendations focuses on the process and not only the content, as how
a reform is handled can be as important as the substantive changes sought in
determining the success of the larger process.


Strengthening Legal Substance


Steps to strengthen the substance of the law can be taken at the level of the
constitution. Discrimination can also be addressed in formal statutes and cus-
tomary law.


Changing the Constitution
As constitutions provide the guiding principles for a country and are used to
measure the validity of statutes, ensuring the primacy of nondiscrimination
based on gender is perhaps the most important single element of reform.




136 EMPOWERING WOMEN


Several constitutions in the region exempt customary and religious laws from
the principle of nondiscrimination in family and inheritance law, undermin-
ing women’s property rights. Women in customary marriages cannot contest
discriminatory customary laws on the grounds of unconstitutionality, and even
the protection of a repugnancy test is uncertain.


Subjecting all sources of law to the principle of nondiscrimination strength-
ens women’s rights. If protections are important enough to be included as a
guiding constitutional principle, they should protect the entire population and
cover the important family and fi nancial decisions that aff ect everyone’s lives.


Even with the constitutional provision of nondiscrimination in place, many
statutes remain on the books—or are even added—that accord women and men
diff erent property rights (box 5.1). Ensuring the primacy of this constitutional
provision is thus an important start but not the fi nal step.


Reforming Formal Law
A basic step for improving women’s economic rights and access to property
is to bring consistency to legal provisions, including by removing contra-
dictory provisions in existing areas of the law. Discriminatory legislation,


BOX 5 .1


Removing Exemptions to Nondiscrimination Provisions
in Kenya
Kenya’s new constitution, agreed to by referendum in 2010, removes the exemptions
to discrimination granted to customary laws in family and inheritance matters since
independence. Although religious laws remain exempt, this move represents a major
breakthrough in how women’s property rights may be enforced in the future. How
constitutional litigation will be used to challenge discriminatory customary practices,
and whether it will alter judicial decision making, has yet to be seen.


Cases such as Otieno v. Ougo (1987)—in which the claim of the widow and chil-
dren to determine the burial arrangements for the deceased (with resulting implica-
tions for the division of the estate) were set aside in favor of the customary laws of
the husband’s clan—could be decided differently in the future. But progress will also
depend on judicial independence from ethnopolitical pressures.


The new constitution also allows for the direct application of international law in courts
without the need for domestic enacting legislation, making Kenya a monist state. This,
too, could affect how the courts deal with discriminatory legal provisions from all sources.


Source: Women–LEED–Africa database; Stamp 1991.




THE WAY FORWARD 137


including restrictions on women’s ability to own, administer, transfer, and
bequeath property, should be repealed.


Removing restrictions on married women’s legal capacity. All statutory con-
straints on women’s legal capacity should be removed. Th ese constraints include
head-of-household laws and restrictions on women’s capacity to work outside
the home, fi le a legal claim, testify in court, and open a bank account. Th e suc-
cessful reform of these laws in Ethiopia and Namibia has shown that change is
possible without incurring a backlash from society.


Recognizing nonmonetary contributions in separate property regimes. Where
separate property regimes prevail, and no alternatives are available, the pas-
sage of legislation specifi cally recognizing the nonmonetary contribution by a
spouse should be a priority. Ultimately, a 50–50 division of marital property on
divorce should be the yardstick.


Mandating joint titling of land. Joint titling of land and the marital home
is essential in protecting women’s interest in what are usually the most valu-
able marital assets. One of the main criticisms of formal land-titling reforms is
that they have marginalized the poor, particularly women. Joint titling of land
is allowed in Kenya, for example, but it is rarely carried out, leaving the vast
majority of land owned solely by men.


Mandatory joint titling can ensure that women are included on the title; a
legal provision, such as that used in Tanzania, that a spouse is included in the
title reduces ambiguity. For joint titling to work, identifi cation or registration
processes may have to be reformed (to ensure that women can obtain birth and
marriage certifi cates easily) or alternative methods for proof of identifi cation
considered.


In some regions of Ethiopia, photos as well as names are required in the
certifi cate. Photos are a useful form of identifi cation where literacy rates are
low. Th ey also make it diffi cult for the husband to sell or rent the land without
the wife’s consent. Comparisons across regions in Ethiopia demonstrate that
small diff erences in the titling program can have a strong impact on whether
the title includes women’s names (box 5.2).


Land administration personnel would benefi t from gender sensitization
training to ensure that they are aware of women’s claims over land. Fees for
titling should be kept low to enable the majority of the population to benefi t.
In more developed economies, incentives such as tax breaks for joint titling
should be considered. At a minimum, legal restrictions on women’s ability to
title land in their own name should be removed (see the discussion of Aphane
in Swaziland in chapter 3), including the requirement that a male assistant be
present at the time of registration.




138 EMPOWERING WOMEN


Enacting labor laws to promote equality. Many countries have enacted equal
right to work and equal pay labor laws, based on International Labour Organi-
zation Conventions 100 and 111. Countries that have not need to address the
gap. Governments should also consider labor legislation guaranteeing mater-
nity leave and other labor rights relating to pregnant and breastfeeding women,


BOX 5 .2


Subtle Differences in Titling Requirements, Important
Differences in Outcomes: Lessons from Ethiopia
In 2003, the main regions of Ethiopia began a process of land certifi cation aimed at
reducing tenure insecurity and encouraging investment. The process was modeled on
the land certifi cation process undertaken several years earlier in the Tigray region.


In Tigray, the land certifi cate was issued in the name of the household head; the
other regions required that the certifi cate be in joint names (box fi gure 5.2.1). In
Amhara and in the south, space was provided to include the photos of both spouses
on the certifi cate; in Oromia, only the head of household’s photo was included.


After several years, land titling by women had risen. But the impact of mandatory
joint titling was weaker where only the photo of the household head was required. A
simple procedural step such as including space for both names and photos on the land
certifi cate can thus enhance the impact of land reform.


Figure B5.2.1 Different Policies Have a Strong Impact on Whose Name Land Is Titled


Pe
rc


en
ta


ge
o


f r
eg


io
ns


Tigray


No joint titling


Amhara


Joint titling with
two photos


Southern region


Joint titling with
two photos


Oromia


Joint titling
(photo of household


head only)


Husband’s name Joint name Wife’s name


0


20


30


40


50


10


60


70


80


90


Source: Deininger and others 2008.




THE WAY FORWARD 139


balancing the protection of women against restrictions that may deny them the
chance to earn a living.


Governments should also review restrictions on labor such as night work
and the type of work women can perform. Laws that may have been passed with
the intention of protecting women can restrict their mobility and employment
opportunities. In Sudan, an Act applying to the State of Khartoum preventing
women from working aft er 5 p.m. and in certain sectors was met with protest
by women’s groups and ultimately repealed (Badri 2005).


Reforming Customary Law
Customary law can be strengthened by drawing on the strengths of traditional
systems and extending statutory recognition and nondiscrimination to custom-
ary rights.


Drawing on the strengths of traditional systems. Given the centrality of cus-
tomary law in the lives of many people in Sub-Saharan Africa, policy makers must
fully understand customary norms and the incentives to reform discriminatory
practices. Th ey must appreciate diff erences in what constitutes justice—punitive
and focused on the individual or restorative and focused on the community—in
designing policies to expand the outreach of the legal system.


Th e formal justice sector can learn from traditional methods of dispute reso-
lution. Toward that end, links between the formal and informal sector should be
encouraged. In Ghana, the formal judicial sector is working with the Traditional
House of Chiefs to assess traditional dispute mechanisms and develop learning
modules on modern dispute resolution practices for both traditional chiefs and
staff working in the formal sector (Bhansali 2010).


Engagement with traditional leaders and de facto decision makers is crucial
to enhance women’s access to traditional forums. Appealing to benign concepts
in customary law, such as the protection of women and social justice, can help
women reaffi rm their access to land and their claims in marital and inheritance
disputes (Ayuko and Chopra 2008). Research on the drivers behind changes in
customary law should be undertaken.


Extending statutory recognition and nondiscrimination to customary rights.
Th e formal land titling system ignored traditional land tenure systems. Wom-
en’s access to land under customary tenure systems are oft en secondary user
rights—that is, user access depends on male relatives. But where customary
rights are not recognized, women can be left in an even more vulnerable situa-
tion, with no rights to land at all.


Some countries have passed laws recognizing communal land rights, and
some have attempted to improve the status of women’s rights in traditional ten-
ure systems. Because few local communities can aff ord to register customary
land rights, one approach is for the government to recognize customary land-
holding that has not been formally registered but that has used inexpensive local




140 EMPOWERING WOMEN


methods of documentation, with the option to upgrade the documentation.
Th is approach creates enforceable rights for communities without the complex-
ity and expense of a formal titling process (see Deininger and others 2008).1 For
example, Mozambique’s land legislation, passed in 1997, allows people to apply
for title to land if they have used it for 10 years. Women should be made aware
of these rights under the law.


In much of Sub-Saharan Africa, customary marriages and consensual
unions, neither of which is protected by formal statutes, are the main form of
unions. Th e formal system can benefi t women by legally recognizing these rela-
tionships, thereby granting women access to marital property and inheritance
rights they may not otherwise have.


Most courts have tried to fi nd creative solutions to providing property rights to
women when they do not fall under the statutory umbrella, but they do so in an
inconsistent manner. A better solution would be for countries to legislate such rights
across all areas that aff ect access to property for women in customary marriages.


Some countries have enacted laws to safeguard women in customary mar-
riages and consensual unions. Ghana provides for inheritance rights to women
in customary marriages but not rights to property in divorce. Mozambique has
legislated rights to marital property for women in de facto unions and custom-
ary marriages but not on the death of the husband or partner. In its Recognition
of Customary Marriages Act of 1998, South Africa extends the community of
property regime to all customary marriages.


A range of laws that limit the property a widow can inherit need reform. For
example, Zambia’s Intestate Succession Act of 1989, which allows the surviving
spouse to inherit 20 percent of the deceased’s property, does not apply to cus-
tomary land, which accounts for 81 percent of land in Zambia (Machina 2002;
see also Ministry of Lands of the Republic of Zambia 2006).


Securing Existing Benefi ts


Beyond enhancing the substance of laws, it is important to improve the func-
tioning of the legal system to ensure that existing rights are realized. Countries
can do so by strengthening enforcement, expanding access to laws and legal
decisions, improving the transparency and accountability of the system, mak-
ing the system more hospitable to women, and tackling practical constraints to
accessing justice.


Strengthening Enforcement
Strengthening the enforcement of existing laws requires both political and
fi nancial resources. Political will is required to strengthen the independence
of the judiciary and extend the reach of the legal system. Allocating adequate




THE WAY FORWARD 141


budgetary resources is also important to strengthen the enforcement capacity
of justice sector institutions.


State enforcement capacity varies greatly in the region. Capacity-building
efforts are needed in fragile postconflict states, where little enforcement
infrastructure exists. In more stable countries, state capacity often fails to
extend to rural communities. The budgeting decisions a government makes
reflect the priority given to the legal sector and the enforcement of law as
a whole.


Strengthening enforcement likely benefi ts the population as a whole. But to
the extent that it improves the enforcement of women’s rights, women would
benefi t disproportionately. For example, countries such as Ghana, Malawi, Zam-
bia, and Zimbabwe impose criminal penalties and fi nes for grabbing property
and evicting widows from the marital home. But the effi cacy of these measures
depends on how strictly these laws are enforced.


Expanding Access to Laws and Legal Decisions
Judicial decision makers, lawyers, and ordinary citizens cannot refer to laws they are
unaware of. In the 1980s and 1990s, law reporting lapsed in many parts of Africa.
Many governments gave up publishing statutes; in some instances, magistrates
and judges were forced to rely on their old notes from law school. Lack of access to
laws and legal decisions has greatly diminished the development of national and
regional jurisprudence (Widner 2001; International Crisis Group 2006).


It is essential to make laws available, through paper publication and online
posting, where feasible. A copy of the constitution and relevant statutes and
treaties should be available in every tribunal, including magistrates’ courts and
local and village courts. Laws should be translated into local languages and
dialects and explained in simplifi ed terms. Case law that promotes women’s
property rights should be identifi ed and widely circulated.


Recent initiatives to improve court reporting and to publish more cases are
gathering support. Between 2001 and 2009, Kenya’s National Council of Law
Reporting (NCLR) substantially reduced a backlog of 20 years of unreported
cases (Walsh 2010). Hard copies of court decisions had been kept in a central
offi ce, but they were not easily accessible to legal professionals. NCLR cata-
logued the cases and organized the fi les, published bound volumes of cases, and
made all records available electronically. Th e online availability of precedents
has dramatically reduced the time judges take to fi le their opinions. Know-
ing that others are now far more likely to read their opinions also improved
incentives to strengthen the quality of opinion writing. Th e NCLR substantially
increased access to the law in Kenya, establishing a model that could be repli-
cated elsewhere in the region.


Th e Southern African Legal Information Institute also publishes online court
judgments. Its database covers 16 countries in southern and eastern Africa.




142 EMPOWERING WOMEN


Improving Transparency and Accountability
Th e local community and civil society can boost the transparency and account-
ability of the justice system through monitoring exercises. Citizens’ reporting
initiatives, such as judiciary dialogue cards used by magistrates’ court users in
Kenya, can cheaply provide feedback on how the justice system operates (Walsh
2010). Civil society should be encouraged to monitor public appointments and
the implementation of laws and to vocalize concerns though human rights report-
ing and investigative journalism. Civil society groups should be included in pol-
icy initiatives aimed at establishing and monitoring access to justice indicators
(UNDP 2004). Th ese steps would improve the operation of the judicial system as
a whole, with the more vulnerable likely benefi tting disproportionately.


Improving the management of court records and making records available to
the public is another tool for improving transparency. Th e Court Administra-
tion Reform Project in Ethiopia improved the management of paper records,
recorded court proceedings, and created a case tracking system, improving the
capacity to track and analyze gender-sensitive cases (Walsh 2010).


Accountability of local justice mechanisms can be increased by ensuring
some measure of external oversight. In addition to establishing ombudsmen,
review offi cers, and oversight mechanisms by judges, policy makers could
integrate civil society into the monitoring of traditional justice mechanisms.
Th e resources and capacity to adopt these measures will obviously vary. Local
appeals systems should not necessarily be created, as appeals can be blocked.
Instead, an aggrieved party who is not satisfi ed with an outcome should be
able to bring the claim into the formal system (Bhansali 2010). Guidelines for
formalized or quasi-formal local customary courts could be drawn with clear
defi nitions regarding jurisdiction (box 5.3).


Making the System More Hospitable to Women
Several sets of actions could make the legal system more hospitable to women.
One would be to increase women’s participation in judicial decision-making
bodies. Rwanda, Tanzania, and Uganda use statutory quotas to boost wom-
en’s participation in land tribunals and other judicial or quasi-judicial bodies,
though concerns remain that their voices are not heard (see box 4.4 in chapter
4). Still, meaningful participation can start only once the presence of women
is seen as the norm. It is this initial bar to entry that quota systems overturns.
Enforcing the rules requires oversight.


A second way to improve women’s experience with the legal system would
be to expand sensitivity training in statutory and traditional sectors (box 5.4).
Legal rights can be undermined by unsupportive implementers of the law,
including judges, traditional leaders, land registry offi cers, land board tribunal
members, and schools, which prepare the next generation of practitioners.




THE WAY FORWARD 143


BOX 5 .3


Guidelines for Strengthening Local Customary Courts
Various guidelines could help strengthen village courts:


• Require that the village court be held in public.
• Establish rules for recusal when a chief has family or business relations with a party


in a dispute.


• Allow parties a “preemptory strike”—a chance to reject the chief or tribunal mem-
ber without showing cause—as is often done in formal arbitration.


• Rotate the chairmanship among the members of the tribunal.
• Maintain records (supported by training and resources).
• Adopt strategies, including quotas, for increasing female membership of village


courts.


Source: Das and Maru 2009.


BOX 5 .4


Sensitizing Legal Professionals to Gender Issues
The International Association of Women Judges Jurisprudence of Equality Program
(JEP) trains judges and legal practitioners in applying international and regional human
rights conventions to cases in domestic courts that involve discrimination or gender
violence. Its workshops and seminars for judges focus on the concrete meanings of
theoretical concepts of equal protection and nondiscrimination. Many JEP-trained
judges credit the program with alerting them to their own and other’s hidden biases
(and to stereotypes that sustain those biases) and to helping them fi nd more effective
and sensitive ways to question witnesses.


JEP-trained judges have launched initiatives to improve access to the legal system.
The Kenya Women Judges Association, for example, has developed checklists of docu-
ments that widows should bring to court when their husband dies. JEP has become an
offi cial part of the Judicial Training Institute in Tanzania and has been incorporated into
other training courses in Kenya and Uganda.


Source: Wood 2008.




144 EMPOWERING WOMEN


Tackling Practical Constraints to Accessing Justice
Th e obstacles facing women and their needs should be addressed on their
own, rather than as part of measures to increase access by the poor. To encour-
age compliance and increase access to the formal system, all procedural steps
should be simple, inexpensive, and easy to carry out.


Increasing accessibility. Several measures can help make the legal system
more accessible. One measure is reducing court costs, such as fees. Exempting
the very poor from paying fees would remove a signifi cant constraint they face
in accessing justice. Extrajudicial costs, including bribes, should be addressed
through anticorruption strategies, such as monitoring. Delays in the justice sys-
tem should also be addressed. Delays and adjournments should be tracked and
strategies developed to reduce blockages in the system.


Another measure is printing all court forms and laws in local languages,
using simplifi ed language. Help desks and information kiosks in courts can help
users understand proceedings and their claim’s progress.


Facilitating marriage registration and the recognition of customary mar-
riages. Registry offi ces are oft en far from where the parties live, and the deci-
sion to register may well rest with the husband. Verifying that a customary
marriage took place if it was not registered is oft en diffi cult, and husbands or
family members oft en deny that a customary marriage took place when prop-
erty disputes arise. In Ghana, registration was initially compulsory, but low rates
of registration because of lack of awareness of where and how to register, as well
as the costs and logistical challenges of traveling to a register’s offi ce, resulted in
the law being changed to make registration discretionary for a transition period
(Fenrich and Higgins 2002).


Registration should not be a barrier for women in customary marriages. Th e
law should be reformed to allow all surrounding circumstances to be considered
in establishing the existence of a relationship. One way of facilitating this pro-
cess is by appointing local registration offi cers who have a degree of fl exibility
on standards of proof.


Broadening the scope of legal services. Restrictions on the provision of legal
services can be a barrier to access. If the market for legal services is limited to
accredited lawyers, costs can be prohibitive, and the scarcity of lawyers can
impede wider community access. In these cases, liberalizing entry barriers—
such as restrictions on unauthorized practice—will open provision of legal ser-
vices to less expensive legal professionals, such as paralegals (box 5.5).


Other methods to broaden the scope of legal services include legal aid clin-
ics and mobile courts, which provide valuable assistance to women (box 5.6)
(Manning 1999). About 39,000 women in Kenya received free legal assistance




THE WAY FORWARD 145


BOX 5 .5


Using Paralegals to Provide Low-Cost
Legal Assistance to the Poor
Many of the region’s countries have paralegal services. Paralegals are long-established
legal service providers in South Africa, where community organizations such as Black
Sash set up “advice centers” in the 1960s to help the black community navigate apar-
theid regulations. Since the end of apartheid, these services have focused on violence
against women, employment, and land restitution.


Sierra Leone uses paralegals to bridge the gap between poor communities and the
formal legal sector. Paralegals can also straddle overlapping legal systems, because
they are often closer to communities. And the training of female paralegals empowers
women directly in their communities.


The Timap paralegal program in Sierra Leone employs 67 paralegals in 29 locations.
They handle a broad range of cases, including child support, family disputes, inheri-
tance, land disputes, and employment.


Paralegals often use mediation and alternative dispute resolution to resolve dis-
putes. When these mechanisms fail, they can refer clients to two Timap–employed
lawyers. In many cases, the mere threat of formal litigation can resolve a dispute.
Timap has provided assistance in more than 1,000 cases that would otherwise have
fallen outside the scope of the legal system.


Source: www.timapforjustice.org.


BOX 5 .6


Equipping Women in Uganda with Knowledge of the Law
In Uganda, women never leave the offi ces of the Federation of Women Lawyers (FIDA)
empty-handed. They leave with either a letter inviting the other party to the dispute to
come to mediation or a piece of paper stating the (formal) law. Knowledge of the law
may be suffi cient to redress the inequality in negotiating strength and allow the parties
to settle the dispute without third-party mediation.


Over the long term, organizations like FIDA may help transform social attitudes that
adversely affect decisions made by traditional legal systems. Knowledge of equal rights
by both men and women will give women greater negotiating power before traditional
justice forums.


Source: Penal Reform International 2000.




146 EMPOWERING WOMEN


from Federation of Women Lawyers legal aid clinics between 2004 and 2006
(Chesoni, Muigai, and Kanyinga 2006).


Considering alternative dispute resolution mechanisms. Mechanisms such as
mediation can be an alternative to the formal adversarial system in such areas as
family law and property disputes. Th ey may also be more familiar to communi-
ties already accustomed to traditional justice forums, such as village courts or
councils of chiefs. Mechanisms can be backed by the formal system and employ
statutory, customary, or religious law. When following this approach, both for-
mal courts and traditional justice forums should adhere to the principles of
human rights for all ethnic groups and nondiscrimination against women.


Small claims courts are a useful fast-track mechanism. Th ey do not require
lawyers, and the process is generally less structured than a regular court hear-
ing. More of such courts would help women assert claims to marital assets and
help small business owners settle commercial disputes.


Increasing Women’s Awareness


Improving substantive protections and access to the legal system will have little
impact if women are unaware of the laws protecting them. Disseminating infor-
mation on existing protections and provisions, particularly in rural areas and
among those who are less educated, is thus crucial.


Th e greatest impact is likely to be on key life decisions: marriage, acquisition
of property, and inheritance. Registering a marriage can extend statutory pro-
tections to women. Titling marital property jointly ensures greater control over
key assets. Writing a will—and having one’s husband and parents write wills—
to specify that the wife (or daughter) inherits a share of the estate can ensure
against other family members, particularly in-laws, disinheriting the woman.


Nongovernmental organizations are developing outreach programs to pro-
mote such steps (examples can be found in NIZA 2009). Social media, such as
public radio and street theater, are good delivery mechanisms. Existing social
networks—such as women’s cooperatives or collectives, which are natural ven-
ues for disseminating information—should also be used. Men also need to be
included, in order to gain wider acceptance of these values.


Choosing a Benefi cial Marital Property Regime
Women should be encouraged to choose benefi cial marital property regimes.
Th e best regime will oft en be community of property, particularly if not all
assets are jointly titled or the woman’s contribution to the family business is
unpaid. Where women have their own assets or a separate business in their own
name, a separate property regime may better serve their interests.




THE WAY FORWARD 147


Titling Marital Property Jointly
To prevent ambiguity regarding the equitable division of marital property,
women should take steps to ensure that the marital home is titled jointly. Doing
so can protect their share of the marital home even in separate property regimes
that do not recognize nonmonetary contributions.


As women are rarely in a position to demand joint titling, statutory provi-
sions requiring it would help them retain a share of the marital home follow-
ing the end of a marriage, because of divorce or death. Where community of
property regimes are available and not subject to the husband’s administrative
control, women should be made aware of the benefi ts of selecting this regime.


Th is approach may not apply to poorer communities, where the value of the
traditional dwellings may not make it worthwhile legally delineating ownership. In
these cases, rights of occupation or use of land may better serve women’s interests.


Using Prenuptial Agreements
Awareness of prenuptial agreements should be increased. For example, in
Kenya, which has a separate property regime, the law recognizes prenuptial
agreements, although they are rarely used. Beyond building awareness of their
existence, a focus should be on the issues prenuptial agreements should cover.
Clauses in Muslim marriage contracts should spell out property as being jointly
owned and address issues other than property rights, such as polygamy, the
right to work outside the home, the right to divorce, and custody of children on
divorce. Many women lack the negotiating power to ask for a prenuptial agree-
ment. Templates produced by nongovernmental organizations could increase
access to such agreements.2


Writing Wills Th at Ensure Women’s Access to a Share of the Estate
Lack of awareness and prevailing social norms in many countries in Sub-Saharan
Africa ensure that even in literate, urban communities, few people draw up
wills. In some communities in Nigeria, for example, draft ing a will implies that a
wife is anxious to hasten her husband’s death, and a widow can face accusations
of murder if her husband does die (Ewelukwa 2002).


Some countries lack legislation that allows for draft ing wills. Th is gap should
be closed.


Enforcing wills is also a challenge. In Zambia, written wills that bequeath prop-
erty to a wife may simply be ignored by the husband’s family, and the widow can
do little to enforce them (Mwenda, Mumba, and Mvula-Mwenda 2005).


Building awareness, advocating through social media, and strengthening
enforcement capacity must be integral to any legislative drive to encourage the
writing of wills. In Namibia, where human immunodefi ciency virus (HIV) rates
are among the highest in the world, local legal clinics, in collaboration with the
United Nations Children’s Fund, are providing training on will writing. Th is




148 EMPOWERING WOMEN


training provides an opportunity not only to make fi nal arrangements but also
to educate people about the importance of explicitly providing for all members
of their families (Aids Law Unit Legal Assistance Centers 2001).


Proceeding with Conviction—and Respect


How a reform is handled can be as important as the substantive changes them-
selves in determining the success of the larger process. Awareness building,
learning activities, grassroots advocacy, and lobbying of decision makers are
all integral parts of the process, particularly in the overlaps among customary,
religious, and statutory laws.


Understanding the Context
Successful reformers need to understand the context and underlying ratio-
nale for existing provisions if they are to engage constructively with the people
whose support is needed to enact change (box 5.7). Understanding the context
increases the likelihood that the strengths of existing systems can be harnessed
as changes are made.


Reformers have to consider the types of law to be reformed and the draft ing
of new laws. Legislation can rarely be imported wholesale from another country,
largely because every country is diff erent. Even within countries, the social con-
text and economic conditions can vary greatly. Policy makers can nevertheless
look at legislation in other countries to see if it can be adapted domestically,
particularly where countries share cultural traits (Bhansali 2010).


In many countries, customary and religious laws applied in tribunals pro-
vide the most accessible justice system for most of the population. Learning
from what works well in these systems while avoiding their shortcomings can
help reformers in their eff orts to improve the lives of the most vulnerable and
marginalized women of society. Models of mediation used in these systems are
increasingly viewed as a low-cost, less adversarial method of resolving disputes,
particularly in family law. Th e focus should be on drawing on the strengths of
these models, encouraging their evolution in a less discriminatory and more
inclusive direction, and increasing accountability.


Reforming Statutes
Successful legal reform involves multiple stakeholders: government, judiciary,
legal personnel and professional associations, religious and traditional authori-
ties, civil society, law enforcement agencies, land boards, social media, and
many others. Enacting a law is just the start: acceptance of the law in a com-
munity, women’s eff ective access to the law, and enforcement are also needed.
Sometimes large shift s in legal frameworks are possible—aft er historic shift s




THE WAY FORWARD 149


in political regimes, for example, or during postconfl ict reconstruction. More
oft en, changes are incremental.


Progress can take time. But tools are available for eff ecting change. Reform-
ers can support “impact” litigation, launch domestic and international cam-
paigns, lobby parliament, submit shadow reports to international treaty com-
mittees, and use the media to advocate for reform.


Reform agendas are oft en spearheaded by social movements, including
women’s groups, civil society organizations, labor unions, legal and judicial
associations, and parliamentary support groups, sometimes with the support of
international donor agencies or nongovernmental organizations.


BOX 5 .7


Conducting a Gender-Disaggregated Assessment
of the Legal Landscape before Embarking upon Reform
One of the fi rst steps policy makers and their advisers need to take before attempting
to implement reform is to conduct a gender-disaggregated assessment of the legal
landscape of the country. This assessment should include focus group discussions that
solicit the views of women from different social, economic, and ethnic backgrounds.


The following steps can enhance the understanding of how the law affects women,
in theory and in practice:


• Review laws that single out women (or married women) or laws that likely have a
differential impact on women, in order to identify discriminatory and benefi cial laws.


• Identify contradictory provisions that could undermine women’s rights.
• Use country surveys to document de facto practices, including where disputes are


handled. Determine why disputes are not taken to dispute-resolution forums.


• Understand the different types of courts, including customary and religious courts,
by studying their location relative to the populations they are supposed to serve,
their procedures, and their jurisdiction. Identify how the judicial, customary, and
religious courts interact with one another.


• Identify barriers to access to different sources of law, in general and for women in
particular.


• Conduct court-user studies, tracking case outcomes on a gender-disaggregated
basis.


• Research customary and religious laws to identify nondiscriminatory norms or laws
that help women access property, discriminatory laws, and channels that can be
more favorable to women.


Source: Adapted from Bhansali 2010; Kane, Oloka-Onyango, and Tejan-Cole 2005.




150 EMPOWERING WOMEN


One approach to reform is to build capacity and strengthen networks of
women’s groups, including associations of lawyers and judges, business organi-
zations, and parliamentary groups. Such networks coalesced to mount success-
ful legal challenges such as the Unity Dow (2004) citizenship case in Botswana
(see box 3.2 in chapter 3) and the Mary-Joyce Doo Aphane (2010) property
rights case in Swaziland.


A second approach involves lobbying the executive through round-table
conferences and discussions with parliamentarians. Where civil society is inex-
perienced in lobbying, it should seek training, perhaps from donors. Experience
with public-private dialogue has been encouraging, but it is important that this
process consciously include women and ensure that issues of importance to
women are on the table.4


Learning from Reforms
Attempts in 2002 and 2009 to reform Mali’s Family Code met resistance from
religious groups (including some women), who protested the reforms on the
grounds that they outlawed polygamy, did not recognize religious or customary
marriages, and undermined traditional gender roles. Underlying this opposi-
tion was the religious authorities’ fear that they would lose their power over
legitimizing marriages and adjudicating inheritances (Wing 2009). Th e new
family code was adopted in August 2009, but it had to be approved by the presi-
dent to become law. Th e president refused to support the new code, which has
therefore not been enacted.


Other Muslim-majority countries have recently reformed family codes, plac-
ing limits on polygamy and giving women increased rights to divorce. Th eir
experience—and the unsuccessful experience of Mali—could provide lessons
for reformers (box 5.8).


Endorsement from religious and community leaders can smooth the path to
reform, underscoring the crucial role of consultations with civil society organi-
zations, women’s groups, and religious authorities. Th e support of strong politi-
cal leaders can also be important.


Where endorsement by religious groups is not forthcoming domestically,
support from other Muslim-majority countries can confer legitimacy on domes-
tic reform eff orts. For example, the fi rst female Sharia judges were appointed
in Malaysia in 2010, aft er a fatwa (religious edict) declared their appointment
permissible. Th e move could pave the way for greater participation by women
in Sharia courts in other countries.


Alliances with government leaders and international pressure can also help
support reform, depending on the local political context, as illustrated in the
case of Benin described in box 5.8. “Impact litigation” can also have far-reaching
eff ects on reform.




THE WAY FORWARD 151


BOX 5 .8


Reforming Family Codes: Lessons from Benin,
Botswana, and Morocco


Benin
Benin’s new family code, adopted in 2004, raised the minimum age of marriage, made
monogamy the sole form of civil marriage, and outlawed forced marriages and the
practice of levirate (wife inheritance). The strong commitment to and leadership of
the reform process at the highest political levels illustrate how crucial they can be in
spearheading change.


The reform movement was supported by infl uential political leaders, such as Rosine
Vieyra, a former fi rst lady and sitting member of the National Assembly; the presi-
dent of the National Assembly; and the president of the High Court. The fact that
the president of the National Assembly was a strong advocate for reform made it dif-
fi cult for legislators to vote against the new code. Lobbying by women’s organizations,
including legal associations such as Women and Law and Development in Africa and
the Association des Femmes Juristes du Benin, also played a fundamental role. Interna-
tional institutions—such as the U.S. Agency for International Development, through its
Women’s Legal Rights Initiatives, and the World Bank (2010), through capacity-building
interventions—were an important source of international support and funding.


Botswana
In Botswana, the successful challenge by women’s groups against discriminatory citizen-
ship laws in the Unity Dow (2004) case, their subsequent lobbying, and international
attention ultimately led to the ground-breaking Abolition of Marital Power Act (2004),
which abolished head-of-household laws in statutory marriages (Mookodi 2005).


Morocco
In Morocco, women’s groups initially pressed for reform in 1993. Eleven years later,
in 2004, a new family code, largely meeting their expectations, came into force. The
reforms include limits on polygamy, the lifting of divorce restrictions for women, an
increase in the minimum age of marriage for both men and women, and enhanced
rights of inheritance for women from male relatives.


Religious groups initially challenged the reforms, but they eventually endorsed them
as consistent with Islamic values. The reform process was given legitimacy at the high-
est level by King Hasan II and his successor, King Mohammed. Committees were estab-
lished comprising religious scholars and representatives from women’s groups.


Exogenous factors also contributed to the acceptance of reform. The bombing in
Casablanca in 2003 tipped the political balance, turning public opinion against the
opposition of Islamic parties, who in turn wanted to distance themselves from extrem-
ist actions. Morocco was also bidding to become a member of the European Union.
In addition, free trade agreements with the European Union and the United States
stepped up the pressure for reform (Arshad 2006).




152 EMPOWERING WOMEN


Conclusion


Th is chapter provides a menu of options and examples to guide reformers in
the region. It argues for including the principle of nondiscrimination based on
gender in every country’s constitution and applying the principle to all women,
regardless of marital, ethnic, or religious status. Th e principle should also apply
to areas of the law that defi ne property rights and legal capacity—rights that are
both of intrinsic importance and instrumental in enabling women to pursue
economic opportunities.


Short-term wins likely to improve the enforcement and accessibility of legal
systems include registration of marriages, joint titling of property, exemption
of court fees for poor women, and sensitivity training for legal professionals.
Medium- to long-term institutional development and governance improvement
measures are needed to strengthen the law and justice institutions in the formal,
customary, and religious systems. Successful reforms indicate that reformers
have to understand the constraints in society before embarking on reform ini-
tiatives, and they need to engage with the actors who can potentially ease or
obstruct the reform process.


Reform should be seen as a long-term goal that provides staggered benefi ts.
Changing laws is a necessary part of this process, but it alone cannot close gen-
der gaps in economic rights; education and acceptance are also needed. Th e
experience in Sub-Saharan countries and elsewhere reveals that changing social
norms take time—but without targeted reform, it may take even longer.


Cases Cited
Attorney General of the Republic of Botswana v. Unity Dow (1994) Case Report Court of


Appeal (6) BCLR 1
Mary Joyce Doo Aphane v. Registrar of Deeds, Minister of Justice and Constitutional Aff airs


and the Attorney General (2010) Civil case No: 383/2009
Otieno v. Ougo (1987), 1 KLR (G&F)


Notes
1. Examples of codes are the plans fonciers ruraux in West Africa.
2. Th e All India Muslim Personal Law Board, in conjunction with Muslim reform


activists, draft ed a model marital contract that provides enhanced rights to divorce,
restricts polygamy, and increases access to marital property. Th e model contract was
ultimately withdrawn because of resistance from conservative scholars (Subrama-
nian 2008).


3. Chapter 10 in the companion volume (Enterprising Women: Expanding Opportuni-
ties in Africa) is devoted to strengthening women’s voice in the policy process.




THE WAY FORWARD 153


References
Aids Law Unit Legal Assistance Centers. 2001. Training Manual for Trainers on Will


Writing and Inheritance in Namibia. Windhoek, Namibia.
Arshad, Amna. 2006. “Ijtihad as a Tool for Islamic Legal Reform: Advancing Women’s


Rights in Morocco.” Kansas Journal of Law & Public Policy 16: 129.
Ayuko, Bonita, and Tanja Chopra. 2008. Th e Illusion of Inclusion: Women’s Access to


Rights in Northern Kenya. Legal Resources Foundation Trust, Nairobi.
Badri, Balghis. 2005. “Feminist Perspectives in the Sudan.” Paper presented at the work-


shop “Feminist Perspectives,” Free University of Berlin, May 26–27.
Bhansali, Lisa. 2010. “Africa Regional Justice Note: A Review and Lessons Learned.”


World Bank, Africa Public Sector Reform, Washington, DC.
Chesoni, Atsango, Salome Muigai, and Karuti Kanyinga. 2006. Promoting Women’s


Human Rights and Enhancing Gender Equality in Kenya. Stockholm: Swedish Inter-
national Development Cooperation Agency.


Das, Maitreya, and Vivek Maru. 2009. “Framing Local Confl ict and Justice in Bangla-
desh.” Policy Research Working Paper 5781, Sustainable Development Department,
World Bank, Washington, DC.


Deininger, Klaus, Daniel A. Ali, Stein Holden, and Jaap Zevenbergen. 2008. “Rural Land
Certifi cation in Ethiopia: Process, Initial Impact, and Implications for Other African
Countries.” World Development 36 (10): 1786–812.


Ewelukwa, Uche. 2002. “Post-Colonialism, Gender, Customary Injustice: Widows in
African Societies.” Human Rights Quarterly 24 (2): 424–86.


Fenrich, Jeanmarie, and Tracy E. Higgins. 2002. “Promise Unfulfi lled: Law, Culture,
and Women’s Inheritance Rights in Ghana.” Fordham International Law Journal 25:
259–341.


International Crisis Group. 2006. “Liberia: Resurrecting the Justice System.” Africa
Report 107, Washington, DC.


Kane, Minneh, J. Oloka-Onyango, and Abdul Tejan-Cole. 2005. “Reassessing Custom-
ary Law Systems as a Vehicle for Providing Equitable Access to Justice for the Poor.”
Paper presented at the conference “New Frontiers of Social Policy,” Arusha, Tanzania,
December 12–15.


Machina, Henry. 2002. “Women’s Land Rights in Zambia: Policy Provisions, Legal
Framework and Constraints.” Paper presented at the Regional Conference on Wom-
en’s Land Rights, Harare, Zimbabwe, May 26–30.


Manning, Daniel. 1999. “Th e Role of Legal Services Organizations in Attacking Poverty.”
Background paper for the World Development Report 2000/01, World Bank, Wash-
ington, DC.


Ministry of Lands of the Republic of Zambia. 2006. “Zambia Draft Land Policy.” Republic
of Zambia, Lusaka.


Mookodi, Godisang B. 2005. “Situating the Legal Status of Women in Development Pro-
cesses: Th e Case of Botswana.” Paper presented at the 11th Codesria General Assembly
“Rethinking African Development: Beyond Impasse, Towards Alternatives,” Maputo,
December 6–10.




154 EMPOWERING WOMEN


Mwenda, Kenneth, Florence Mumba, and Judith Mvula-Mwenda. 2005. “Property-
Grabbing under African Customary Law: Repugnant to Natural Justice, Equity, and
Good Conscience, Yet a Troubling Reality.” George Washington International Law
Review 37: 949.


NIZA (Netherlands Institute for Southern Africa) and ActionAid International
2009. Women’s Land Rights in Southern Africa: Consolidated Baseline Findings from
Malawi, Mozambique, South Africa, Zambia, and Zimbabwe. Amsterdam: NIZA and
ActionAid.


Penal Reform International. 2000. Access to Justice in Sub-Saharan Africa: Th e Role of
Traditional and Informal Justice Systems, 66–67. London: Astron Printers.


Stamp, Patricia. 1991. “Burying Otieno: Th e Politics of Gender and Ethnicity in Kenya.”
Signs 16 (4): 808–45.


Subramanian, Narendra. 2008. “Legal Change and Gender Inequality: Changes in Mus-
lim Family Law in India.” Law & Social Inquiry 33 (3): 631–72.


Udry, Christopher, John Hoddinott, Harold Alderman, and Lawrence Haddad. 2004.
“Access to Justice Practice Note.” UNDP, New York.


UNDP (United Nations Development Programme). 2004. “Access to Justice Practice
Note.” UNDP, New York.


Walsh, Barry. 2010. “In Search of Success: Case Studies in Justice Sector Development in
Sub-Saharan Africa.” Report 57445, World Bank, Washington, DC.


Widner, Jennifer. 2001. “Courts and Democracy in Postconfl ict Transitions: A Social
Scientist’s Perspective on the African Case.” American Journal of International Law
95 (1): 64–75.


Wing, Susanna D. 2009. “Exploring Democracy, Women’s Rights, and Legal Reform in
Francophone Africa.” Paper presented at the conference “Rethinking Development:
Societal Transformations and the Challenges of Governance in Africa and the Middle
East,” Yale University, New Haven, CT, January 30–31.


Wood, Georgina. 2008. “Th e Role of the Judiciary in Promoting Gender Justice in
Africa.” Paper presented at the Partners for Gender Justice Conference, Accra, Ghana,
November 19–21.




155


Appendix A


Scoresheets


Indicators Based on Constitutions, International
Conventions, and Statutes in Effect as of June 2011




156


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Table A.1 Scoresheet 1: Ratification of international conventions by African countries


Country characteristics Convention ratifi ed Type of state


Angola Middle Income Civil Yes Yes Yes Yes Yes No No Yes


Benin Low Income Civil Yes Yes Yes Yes Yes No Yes No


Botswana Middle Income Common Yes No Yes Yes No No No Yes


Burkina Faso Low Income Civil Yes Yes Yes Yes Yes No Yes No


Burundi Low Income Civil Yes No Yes Yes Yes No Yes No


Cameroon Middle Income Civil Yes No Yes Yes Yes No Yes No


Cape Verde Middle Income Civil Yes Yes Yes Yes No No Yes No


Central African Republic Low Income Civil Yes No Yes Yes Yes No Yes No


Chad Low Income Civil Yes No Yes Yes Yes No Yes No


Comoros Low Income Civil Yes Yes Yes Yes Yes No Yes No


Congo, Demo. Rep. Low Income Civil Yes Yes Yes Yes Yes No Yes No


Congo, Rep. Middle Income Civil Yes No Yes Yes Yes No Yes No


Côte d’Ivoire Middle Income Civil Yes Yes Yes Yes Yes No Yes No


Equatorial Guinea Middle Income Civil Yes No Yes Yes No No Yes No


Eritrea Low Income Civil Yes No Yes Yes No No Yes No


Ethiopia Low Income Civil Yes No Yes Yes No Yes Yes No


Gabon Middle Income Civil Yes No Yes Yes Yes No Yes No


Gambia, The Low Income Common Yes Yes Yes Yes No No No Yes


Ghana Middle Income Common Yes Yes Yes Yes Yes No No Yes


Guinea Low Income Civil Yes No Yes Yes Yes No Yes No


Guinea-Bissau Low Income Civil Yes Yes Yes Yes Yes No Yes No


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Kenya Low Income Common Yes No Yes Yes Yes No Yes No


Lesotho Middle Income Common Yes Yes Yes Yes No No No Yes


Liberia Low Income Common Yes Yes No Yes No No No Yes


Madagascar Low Income Civil Yes No Yes Yes Yes No Yes No


Malawi Low Income Common Yes Yes Yes Yes Yes No Yes No


Mali Low Income Civil Yes Yes Yes Yes Yes No Yes No


Mauritania Middle Income Civil Yes Yes Yes Yes Yes No Yes No


Mauritius Middle Income Civil Yes No Yes Yes No No No Yes


Mozambique Low Income Civil Yes Yes Yes Yes No No Yes No


Namibia Middle Income Common Yes Yes Yes Yes No No Yes No


Niger Low Income Civil Yes No Yes Yes Yes No Yes No


Nigeria Middle Income Common Yes Yes Yes Yes No No No Yes


Rwanda Low Income Civil Yes Yes Yes Yes Yes No Yes No


São Tomé and Principe Middle Income Civil Yes No Yes Yes No No — —


Senegal Middle Income Civil Yes Yes Yes Yes Yes No Yes No


Seychelles Middle Income Common Yes Yes Yes Yes No No No Yes


Sierra Leone Low Income Common Yes No Yes Yes No No No Yes


Somalia Low Income Civil No No No Yes No No — —


South Africa Middle Income Common Yes Yes Yes Yes Yes No Yes No


Sudan Middle Income Common No No Yes Yes No No No Yes


Swaziland Middle Income Common Yes No Yes Yes Yes No No Yes


Tanzania Low Income Common Yes Yes Yes Yes No No No Yes


Togo Low Income Civil Yes Yes Yes Yes Yes No Yes No


Uganda Low Income Common Yes Yes Yes Yes No No No Yes


Zambia Middle Income Common Yes Yes Yes Yes No No No Yes


Zimbabwe Low Income Common Yes Yes Yes Yes No No No Yes


Source: CEDAW, African Union, International Labour Organization, and recent news reports.
Note: CEDAW is the Committee on the Elimination of Discrimination against Women. ILO is the International Labour Organization. — Not available.




158


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Table A.2 Scoresheet 2: Selected features of constitutions of African countries


Angola Middle Income Civil Yes Yes Yes No No No No Yes
Benin Low Income Civil Yes Yes Yes No Yes No Yes Yes
Botswana Middle Income Common Yes No No No No Yes Yes No
Burkina Faso Low Income Civil Yes Yes Yes No Yes No No Yes
Burundi Low Income Civil Yes Yes Yes No Yes No Yes No
Cameroon Middle Income Civil Yes Yes Yes No Yes No No Yes
Cape Verde Middle Income Civil Yes No Yes No Yes No Yes No
Central African Republic Low Income Civil Yes Yes Yes No Yes No Yes No
Chad Low Income Civil Yes Yes Yes No Yes Yes Yes No
Comoros Low Income Civil Yes Yes Yes No No No Yes No
Congo, Demo. Rep. Low Income Civil Yes Yes Yes No Yes Yes Yes Yes
Congo, Rep. Middle Income Civil Yes Yes Yes No Yes Yes Yes Yes
Côte d’Ivoire Middle Income Civil Yes Yes Yes No Yes No Yes No
Equatorial Guinea Middle Income Civil Yes Yes Yes No No Yes No Yes
Eritrea Low Income Civil Yes Yes Yes No No No Yes No
Ethiopia Low Income Civil Yes Yes Yes Yes Yes Yes Yes No
Gabon Middle Income Civil Yes Yes Yes No Yes No Yes Yes
Gambia, The Low Income Common Yes Yes No No No Yes Yes No
Ghana Middle Income Common Yes No Yes No Yes Yes Yes No
Guinea Low Income Civil Yes Yes Yes No No No No No


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n


a


l


i


t


y




o


f




s


t


a


t


u


t


e


s




o


n


l


y




t


o




e


x


e


c


u


t


i


v


e




b


r


a


n


c


h





SC
O


RESH
EETS



159


Guinea-Bissau Low Income Civil Yes Yes No Yes No No Yes No
Kenya Low Income Common Yes Yes Yes Yes No Yes Yes No
Lesotho Middle Income Common Yes Yes No No Yes Yes Yes No
Liberia Low Income Common Yes No Yes Yes Yes Yes Yes No
Madagascar Low Income Civil Yes Yes Yes No Yes No No Yes
Malawi Low Income Common Yes Yes Yes Yes Yes Yes Yes No
Mali Low Income Civil Yes Yes Yes No Yes No No Yes
Mauritania Middle Income Civil Yes Yes Yes No No No No No
Mauritius Middle Income Civil Yes No Yes No No No Yes No
Mozambique Low Income Civil Yes Yes Yes No Yes Yes Yes No
Namibia Middle Income Common Yes Yes Yes No Yes Yes Yes No
Niger Low Income Civil Yes Yes No No No Yes Yes Yes
Nigeria Middle Income Common Yes Yes Yes No Yes Yes Yes No
Rwanda Low Income Civil Yes Yes Yes No Yes Yes Yes No
São Tomé and Principe Middle Income Civil Yes Yes — — — No — —
Senegal Middle Income Civil Yes Yes Yes Yes Yes No Noa Yes


Seychelles Middle Income Common Yes Yes Yes No Yes No Yes No
Sierra Leone Low Income Common Yes Yes Yes No Yes Yes Yes No
Somalia Low Income Civil Yes Yes Yes No Yes Yes Yes No
South Africa Middle Income Common Yes Yes Yes No No Yes Yes No
Sudan Middle Income Common Yes Yes Yes No Yes Yes Yes No
Swaziland Middle Income Common Yes Yes Yes Yes Yes Yes Yes No
Tanzania Low Income Common Yes Yes Yes No Yes No Yes No
Togo Low Income Civil Yes Yes Yes No Yes No Yes Yes
Uganda Low Income Common Yes Yes Yes No Yes Yes Yes No
Zambia Middle Income Common Yes Yes Yes No No Yes Yes No
Zimbabwe Low Income Common Yes Yes No Yes No Yes Yes No


Source: National constitution of each country.
Note: — Not available.


a. By statute, citizens can bring constitutional challenges in the high or ordinary courts.




160


EM
PO


W
ERIN


G
W


O
M


EN
Table A.3 Scoresheet 3: Legal recognition of and limitations on customary and religious law in African countries


Angola Middle Income Civil No No Yes No n.a. No n.a. No n.a. No No No
Benin Low Income Civil No No Yes No n.a. No n.a. No n.a. No No No
Botswana Middle Income Common No Yes No No n.a. Yes Yes Yes Yes Yes Yes No
Burkina Faso Low Income Civil No No Yes No n.a. No n.a. No n.a. No No No
Burundi Low Income Civil No No Yes No n.a. No n.a. No n.a. No No No
Cameroon Middle Income Civil No No Yes No n.a. Yes Yes Yes Yes Yes No Yes
Cape Verde Middle Income Civil No No Yes No n.a. No n.a. No n.a. No No No
Central African
Republic


Low Income Civil No No Yes No n.a. — — No n.a. No No No


Chad Low Income Civil Yes No No No n.a. Yes Yes — — — Yes No
Comoros Low Income Civil No No Yes Yes No No n.a. Yes No No No No
Congo, Demo. Rep. Low Income Civil Yes No No No n.a. — — No n.a. Yes No No
Congo, Rep. Middle Income Civil No No Yes No n.a. No n.a. No n.a. No — No
Côte d’Ivoire Middle Income Civil No No Yes No n.a. No n.a. No n.a. No No No
Equatorial Guinea Middle Income Civil Yes No No No n.a. Yes Yes No n.a. No No No
Eritrea Low Income Civil No No Yes No n.a. No n.a. Yes No Yes No Yes
Ethiopia Low Income Civil Yes No No Yes Yes Yes Yes Yes Yes Yes Yes Yes


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g


e


n


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a


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f




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f


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l




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u


r


t


s


Country characteristics


Constitutional recognition Statutory recognition




SC
O


RESH
EETS



161


Gabon Middle Income Civil No No Yes No n.a. No n.a. No n.a. No No No
Gambia, The Low Income Common No Yes No Yes Yes Yes Yes Yes No Yes Yes Yes
Ghana Middle Income Common No Yes No Yes No Yes Yes Yes Yes No No No
Guinea Low Income Civil No No Yes No n.a. No n.a. No n.a. No Yes No
Guinea-Bissau Low Income Civil No No Yes No n.a. No n.a. Yes Yes No — No
Kenya Low Income Common Yes No No Yes Yes Yes Yes Yes Yes No No Yes
Lesotho Middle Income Common No Yes No Yes No Yes Yes Yes Yes Yes Yes No
Liberia Low Income Common Yes No No No n.a. Yes Yes No n.a. Yes No No
Madagascar Low Income Civil No No Yes No n.a. — — No n.a. — Yes No
Malawi Low Income Common Yes No No No n.a. Yes Yes Yes Yes No No No
Mali Low Income Civil No No Yes No n.a. Yes Yes Yes No No No No
Mauritania Middle Income Civil Yes No No Yes No No n.a. Yes No No No No
Mauritius Middle Income Civil No Yes No Yes No No n.a. No n.a. No No No
Mozambique Low Income Civil Yes No No No n.a. Yes Yes Yes Yes Yes Yes No
Namibia Middle Income Common Yes No No No n.a. Yes Yes No n.a. Yes No No
Niger Low Income Civil Yes No No No n.a. Yes Yes Yes Yes Yes Yes No
Nigeria Middle Income Common Yes No No Yes No Yes Yes Yes Yes Yes No Yes
Rwanda Low Income Civil Yes No No No n.a. Yes Yes No n.a. Yes No No
São Tomé and
Principe


Middle Income Civil No No Yes No n.a. No n.a. No n.a. — — No


Senegal Middle Income Civil No No Yes No n.a. Yes No Yes No No No No
Seychelles Middle Income Common No No Yes No n.a. No n.a. No n.a. No No No
Sierra Leone Low Income Common No Yes No Yes No Yes Yes Yes Yes Yes No No
Somalia Low Income Civil Yes No No Yes No — — Yes No No No Yes
South Africa Middle Income Common Yes No No Yes Yes Yes Yes No n.a. Yes No No
Sudan Middle Income Common Yes No No Yes No Yes No Yes No Yes Yes Yes
Swaziland Middle Income Common Yes No No No n.a. Yes Yes No n.a. Yes No No
Tanzania Low Income Common No No Yes No n.a. Yes Yes Yes Yes Yes No No
Togo Low Income Civil Yes No No No n.a. Yes Yes No n.a. No Yes No
Uganda Low Income Common Yes No No Yes Yes Yes Yes Yes Yes Yes — Yes
Zambia Middle Income Common No Yes No No n.a. Yes Yes No n.a. Yes No No
Zimbabwe Low Income Common No Yes No No n.a. Yes Yes No n.a. Yes No No


Source: National constitutions, codes, and statutues.
Note: n.a. = not applicable.




162


EM
PO


W
ERIN


G
W


O
M


EN


Table A.4 Scoresheet 4: Legal capacity of men and women in African countries


Angola Middle Income Civil No No No No
Benin Low Income Civil No Yes No No
Botswana Middle Income Common Yes Yes Yes No
Burkina Faso Low Income Civil No Yes No No
Burundi Low Income Civil Yes No No No
Cameroon Middle Income Civil Yes Yes Yes Yes
Cape Verde Middle Income Civil No No Yes No
Central African Republic Low Income Civil Yes Yes No No
Chad Low Income Civil Yes Yes — —
Comoros Low Income Civil Yes No No No
Congo, Demo. Rep. Low Income Civil Yes Yes Yes Yes
Congo, Rep. Middle Income Civil Yes Yes No Yes
Cìte d’Ivoire Middle Income Civil Yes Yes No Yes
Equatorial Guinea Middle Income Civil No — No No
Eritrea Low Income Civil No No No No
Ethiopia Low Income Civil No No No No
Gabon Middle Income Civil Yes Yes No Yes
Gambia, The Low Income Common No No No No
Ghana Middle Income Common No No No No


C


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n


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r


y


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n


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o


m


e




l


e


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e


l




(


2


0


1


1


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n




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a


n


k




a


c


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u


n


t


H


u


s


b


a


n


d




c


a


n




d


e


n


y




w


i


f


e




p


e


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m


i


s


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o


n




t


o




p


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e




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e




SC
O


RESH
EETS



163


Guinea Low Income Civil Yes Yes No Yes
Guinea-Bissau Low Income Civil Yes Yes Yes Yes
Kenya Low Income Common No No No No
Lesotho Middle Income Common No No No Yes
Liberia Low Income Common No No No No
Madagascar Low Income Civil Yes Yes No No
Malawi Low Income Common No No No No
Mali Low Income Civil Yes Yes Yes Yes
Mauritania Middle Income Civil Yes Yes No No
Mauritius Middle Income Civil No No No No
Mozambique Low Income Civil No No No No
Namibia Middle Income Common No No No No
Niger Low Income Civil Yes Yes No Yes
Nigeria Middle Income Common No No No No
Rwanda Low Income Civil Yes Yes No No
São Tomé and Principe Middle Income Civil No No — No
Senegal Middle Income Civil Yes Yes No No
Seychelles Middle Income Common No No No No
Sierra Leone Low Income Common No No No No
Somalia Low Income Civil Yes Yes — —
South Africa Middle Income Common No No No No
Sudan Middle Income Common Yes Yes No Yes
Swaziland Middle Income Common Yes Yes Yes Yes
Tanzania Low Income Common No No No No
Togo Low Income Civil Yes Yes Yes Yes
Uganda Low Income Common No No No No
Zambia Middle Income Common No No No No
Zimbabwe Low Income Common No No No No


Source: National family codes and statutes.
Note: — Not available.




164 EMPOWERING WOMEN


Table A.5 Scoresheet 5: Marital property regimes in African countries


Marital property regime
Administration of property


within marriage


Angola Middle Income Civil Community Yes No No No No No No No
Benin Low Income Civil Separate Yes No No No No No No No
Botswana Middle Income Common Customary Yes Yes No No No No No No
Burkina Faso Low Income Civil Community Yes No Yes No Yes No No No
Burundi Low Income Civil Customary Yes No No No Yes No No No
Cameroon Middle Income Civil Community Yes Yes Yes Yes No Yes Yes Yes
Cape Verde Middle Income Civil Community Yes No No No No No No No
Central African Republic Low Income Civil Separate Yes No Yes No Yes No No No
Chad Low Income Civil Community Yes Yes Yes — — — — —
Comoros Low Income Civil Community Yes No Yes No No No No No
Congo, Demo. Rep. Low Income Civil Community Yes No No No Yes No No No
Congo, Rep. Middle Income Civil Community Yes No Yes No Yes No No No
Côte d’Ivoire Middle Income Civil Community Yes No No No Yes No No No
Equatorial Guinea Middle Income Civil — — Yes Yes — — — — —
Eritrea Low Income Civil Community Yes Yes No No No No No No
Ethiopia Low Income Civil Community Yes Yes No No No No No No
Gabon Middle Income Civil Separate Yes No Yes No Yes No No No
Gambia, The Low Income Common Separate No Yes Yes No No No No No
Ghana Middle Income Common Separate No Yes Yes No No No No No
Guinea Low Income Civil No provision Yes No No No No No No No
Guinea-Bissau Low Income Civil Community Yes No No Yes No No No No
Kenya Low Income Common Separate No Yes Yes No No No No No
Lesotho Middle Income Common Community Yes Yes Yes No No No No No
Liberia Low Income Common Separate Yes Yes Yes No No No No No
Madagascar Low Income Civil Community Yes Yes No Yes No No No No


Co
un


tr
y


In
co


m
e


le
ve


l (
20


11
)


Le
ga


l s
ys


te
m


D
ef


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lt


m
ar


ita
l p


ro
pe


rt
y


re
gi


m
e


“C
om


m
un


ity
o


f p
ro


pe
rt


y”
is


a
llo


w
ed


M
ar


ria
ge


s
ta


tu
te


s
re


co
gn


iz
e


cu
st


om
ar


y
m


ar
ria


ge
s


Po
ly


ga
m


y
is


fo
rm


al
ly


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llo


w
ed


Hu
sb


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d


is
re


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gn


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ed


a
s


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ad


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se


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ld


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nd


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llo


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ed



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dm


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al


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us


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ai


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t i


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m


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l p


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pe


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y


Hu
sb


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d


ha
s


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w


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to


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dm


in
is


te
r


pe
rs


on
al


p
ro


pe
rt


y
of


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ife


Hu
sb


an
d


ca
n


pa
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co
m


m
un


ity
d


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ts



fr


om
p


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so


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l p


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pe


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y


of
w


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Hu
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d


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e


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m


m
un


ity
p


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pe


rt
y


to
p


ay
o


w
n


pe
rs


on
al


d
eb


ts




SCORESHEETS 165


Dowry and bride price
Division of property


upon divorce Inheritance of property


No No No Yes No No Yes No Yes Yes Yes Yes No Yes No Yes Yes Yes Yes Yes
No No Yes Yes Yes No Yes No No No No Yes No No No No Yes Yes Yes Yes
— — — Yes — — No No No No No No No No Yes No No No No No
No No No Yes No Yes Yes No No Yes Yes Yes No No No No Yes Yes Yes Yes
No No yes Yes No No No No No No No No No No No No No No No No
No No no Yes No Yes No No No No Yes Yes No Yes No No Yes Yes Yes No
— — — — — — Yes No Yes Yes Yes Yes No Yes No Yes Yes Yes No Yes
No Yes Yes Yes No No — No — — — Yes No No No No — — — Yes
Yes Yes Yes Yes No No Yes — — Yes Yes Yes — — — Yes Yes — — Yes
Yes No Yes Yes No No Yes Yes No No Yes Yes No No Yes No Yes Yes Yes Yes
— Yes Yes Yes Yes No Yes No No Yes Yes Yes No No No No Yes Yes Yes Yes
— Yes Yes — Yes — Yes No No Yes Yes Yes No No No No Yes Yes Yes Yes
No No No — No Yes Yes No No Yes Yes Yes No No No Yes Yes No No Yes
No No — Yes No Nob — No No No — No No No No No No No No No
No No — Yes No Yes Yes — — Yes Yes Yes No — No Yes Yes — — Yes
No No — Yes No No Yes Yes Yes Yes Yes Yes No Yes No Yes Yes No Yes Yes
No No — Yes No Yes Yes No No No No Yes No No No No Yes Yes Yes Yes
— — — Yes No No No No No No No Yes No No Yes No No Yes No Yes
No No No Yes No No Yes No No No No Yes Yes No Yes Yes Yes Yes Yes Yes
Yes Yes Yes — Yes No Yes No No Yes No Yes No No No No Yes Yes Yes Yes
— — — Yes — — Yes No Yes Yes Yes Yes No Yes No Yes — — — Yes
Yes Yes Yes Yes No No No No No No No Yes No No Yes No No Yes Yes Yes
— — — yes No No Yes No No Yes Yes Yes No No Yes Yes Yes Yes — Yes
— — Yes Yes No No Yes Yes No No — Yes Yes No Yes — Yes Yes — Yes
— Yes yes Yes — — Yes No No No Yes Yes Yes No Yes Yes Yes Yes Yes Yes


D
ow


ry
le


ga
lly


re
qu


ire
d


(g
oe


s
st


ra
ig


ht
to


w
ife


)


Br
id


e
pr


ic
e


to
h


er
fa


m
ily


/w
ea


lth


le
ga


lly
re


qu
ire


d


D
ow


ry
/b


rid
e


pr
ic


e
le


ga
lly


re
co


gn
is


ed


Br
id


e
pr


ic
e/


do
w


ry
c


us
to


m
ar


ily
re


qu
ire


d


Sy
m


bo
lic


/fi
xe


d
su


m
(w


he
re


le
ga


lly


re
qu


ire
d;


a
m


t i
n


st
at


ut
e)


D
ow


ry
o


r b
rid


e
pr


ic
e


ar
e


ba
nn


ed


W
om


en
in


s
ta


tu
to


ry
m


ar
ria


ge
s


ar
e


en
tit


le
d


to
s


om
e


of
th


e
m


ar
ita


l p
ro


pe
rt


y
up


on
d


iv
or


ce


W
om


en
in


c
us


to
m


ar
y


m
ar


ria
ge


s
ar


e
en


tit
le


d
to


s
om


e
of


th
e


m
ar


ita
l p


ro
pe


rt
y


up
on


d
iv


or
ce




W
om


en
in


c
on


se
ns


ua
l u


ni
on


s
ar


e
en


tit
le


d
to



so


m
e


of
th


e
m


ar
ita


l p
ro


pe
rt


y
up


on
d


iv
or


ce


M
ar


ita
l p


ro
pe


rt
y


is
d


iv
id


ed
e


qu
al


y
up


on
d


iv
or


ce


W
ife


’s
no


nm
on


et
ar


y
co


nt
rib


ut
io


n
is


re
co


gn
iz


ed


in
d


et
er


m
in


in
g


sh
ar


e
of


p
ro


pe
rt


y
sh


e
re


ce
iv


es
in



co


un
tr


ie
s


w
ith


s
ep


ar
at


e
pr


op
er


ty
re


gi
m


es


Ri
gh


t o
f w


om
en


m
ar


rie
d


un
de


r s
ta


tu
at


or
y


la
w


to
in


he
rit


is
re


co
gn


iz
ed


RI
gh


t o
f w


om
en


m
ar


rie
d


un
de


r c
us


to
m


ar
y


la
w


to
in


he
rit


is
re


co
gn


iz
ed


W
om


an
’s


ab
ili


ty
to


in
he


rit
in


a
c


on
se


ns
ua


l
un


io
n


is
re


co
gn


iz
ed


St
at


ut
or


y
re


co
gn


iti
on


is
g


ra
nt


ed
to


c
us


to
m


ar
y


la
w


in


pr
op


er
ty


in
he


rit
an


ce
(t


hr
ou


gh
s


uc
ce


ss
io


n
ac


ts
, f


or
e


xa
m


pl
e)


N
on


m
on


et
ar


y
co


nt
rib


ut
io


ns
to


m
at


rim
on


ia
l p


ro
pe


rt
y


ar
e


re
co


gn
iz


ed
in


d
et


er
m


in
in


g
in


he
rit


an
ce


W
ife


’s
po


rt
io


n
of


jo
in


t p
ro


pe
rt


y
is


re
co


gn
iz


ed


in
c


as
es


o
f i


nt
es


ta
te


in
he


rit
ia


nc
e


W
id


ow
h


as
ri


gh
t t


o
re


m
ai


n
in


a
nd


u
se


h
ou


se
a


nd
la


nd


of
h


us
ba


nd
u


po
n


hi
s


de
at


h,
a


t l
ea


st
u


nt
il


sh
e


re
m


ar
rie


s


Ri
gh


t o
f m


ai
nt


en
an


ce
fr


om
d


ec
ea


se
d’


s
es


ta
te


Ch
ild


le
ss


w
om


en
h


av
e


rig
ht


to
in


he
rit



if


hu
sb


an
d


di
es


in
te


st
at


e


continued




166 EMPOWERING WOMEN


Malawi Low Income Common Separate No Yes No No No No No No
Mali Low Income Civil Separate Yes No Yes No Yes No Yes Yes
Mauritania Middle Income Civil Separate No No Yes No No No No No
Mauritius Middle Income Civil Community Yes No No No Yes No No Yes
Mozambique Low Income Civil Community Yes Yes No No No No No No
Namibia Middle Income Common Community Yes Yes No No Yes No No No
Niger Low Income Civil Separate Yes Yes Yes Yes No No No No
Nigeria Middle Income Common Separate No Yes Yes No No No No —
Rwanda Low Income Civil Community Yes No No No Yes No No No
São Tomé and Principe Middle Income Civil Community Yes No No No No No No No
Senegal Middle Income Civil Separate Yes Yes Yes No No No No No
Seychelles Middle Income Common Separate No No No No No No No No
Sierra Leone Low Income Common Separate Yes Yes Yes No No No No No
Somalia Low Income Civil Separate — — Yes — — — — —
South Africa Middle Income Common Community Yes Yes Yes No Yes No No No
Sudan Middle Income Common Separate — Yes Yes No No No No No
Swaziland Middle Income Common Customary Yes Yes Yes Yes No Yes Yes Yes
Tanzania Low Income Common Separate No Yes Yes No No No No No
Togo Low Income Civil Separate Yes Yes Yes No Yes No Yes Yes
Uganda Low Income Common Separate No Yes Yes No No No No No
Zambia Middle Income Common Separate No Yes Yes No No No No No
Zimbabwe Low Income Common Separate Yes Yes Yes No Yes No No No


Source: National family and inheritance codes and statutes.
Note: — Not available.


Table A.5 Scoresheet 5: Marital property regimes in African countries continued


Marital property regime
Administration of property


within marriage


Co
un


tr
y


In
co


m
e


le
ve


l (
20


11
)


Le
ga


l s
ys


te
m


D
ef


au
lt


m
ar


ita
l p


ro
pe


rt
y


re
gi


m
e


“C
om


m
un


ity
o


f p
ro


pe
rt


y”
is


a
llo


w
ed


M
ar


ria
ge


s
ta


tu
te


s
re


co
gn


iz
e


cu
st


om
ar


y
m


ar
ria


ge
s


Po
ly


ga
m


y
is


fo
rm


al
ly


a
llo


w
ed


Hu
sb


an
d


is
re


co
gn


iz
ed


a
s


he
ad


o
f h


ou
se


ho
ld


a
nd


a
llo


w
ed



to


a
dm


in
is


te
r o


r m
an


ag
e


co
m


m
un


ity
o


f p
ro


pe
rt


y
al


on
e


Hu
sb


an
d


m
us


t g
ai


n
w


ife
’s


co
ns


en
t i


n
m


an
ag


in
g


m
ar


ita
l p


ro
pe


rt
y


Hu
sb


an
d


ha
s


po
w


er
to


a
dm


in
is


te
r


pe
rs


on
al


p
ro


pe
rt


y
of


w
ife


Hu
sb


an
d


ca
n


pa
y


co
m


m
un


ity
d


eb
ts



fr


om
p


er
so


na
l p


ro
pe


rt
y


of
w


ife


Hu
sb


an
d


ca
n


us
e


co
m


m
un


ity
p


ro
pe


rt
y


to
p


ay
o


w
n


pe
rs


on
al


d
eb


ts




SCORESHEETS 167


— — — Yes — — No Yes No No No Yes Yes No Yes Yes Yes Yes Yes Yes
Yes — Yes Yes Yes No Yes No No No No Yes No No Yes No Yes Yes Yes Yes
Yes — Yes Yes No No Yes No No No No Yes No No No No Yes Yes No Yes
— — — — — — Yes No No Yes Yes Yes No No No No Yes Yes Yes Yes
No No — Yes No No Yes Yes Yes Yes Yes Yes Yes No Yes No Yes No No Yes
— — — Yes — — Yes No No Yes Yes Yes Yes No Yes Yes Yes Yes No Yes
— — — Yes No No Yes No No No No Yes No No Yes No Yes Yes Yes Yes
— — Yes Yes — — No No No No No Yes No No Yes No Yes Yes Yes Yes
Yes — Yes Yes No No Yes No No Yes No Yes No No No Yes Yes Yes Yes Yes
— — — — — — Yes Yes Yes Yes Yes Yes Yes Yes No — — — — —
Yes — Yes Yes No No Yes No No No No Yes No No No No Yes Yes No Yes
No No — — No No Yes No No No No Yes No No No No Yes No — Yes
— Yes Yes Yes No No Yes No No No No Yes Yes Yes Yes Yes Yes Yes Yes Yes
— — — Yes — — — — — — — Yes — — — — Yes — — Yes
No No Yes Yes No No Yes Yes No Yes Yes Yes Yes No Yes Yes Yes No Yes Yes
Yes — Yes yes No No No No No No No Yes No No Yes No No Yes — Yes
— — — Yes No No No No No No No No No No Yes No No No No No
— No Yes Yes No No Yes Yes No No Yes No No No Yes No No Yes No No
— Yes Yes — No No Yes No No No No No No No Yes No No No No No
— Yes Yes — — — Yes No No No No Yes No No Yes No No Yes Yes Yes
No No No Yes No No Yes No No No Yes Yes No No Yes Yes No Yes Yes Yes
— Yes Yes Yes No No Yes Yes No No Yes Yes Yes No Yes Yes No Yes Yes Yes


Dowry and bride price
Division of property


upon divorce Inheritance of property


D
ow


ry
le


ga
lly


re
qu


ire
d


(g
oe


s
st


ra
ig


ht
to


w
ife


)


Br
id


e
pr


ic
e


to
h


er
fa


m
ily


/w
ea


lth


le
ga


lly
re


qu
ire


d


D
ow


ry
/b


rid
e


pr
ic


e
le


ga
lly


re
co


gn
is


ed


Br
id


e
pr


ic
e/


do
w


ry
c


us
to


m
ar


ily
re


qu
ire


d


Sy
m


bo
lic


/fi
xe


d
su


m
(w


he
re


le
ga


lly


re
qu


ire
d;


a
m


t i
n


st
at


ut
e)


D
ow


ry
o


r b
rid


e
pr


ic
e


ar
e


ba
nn


ed


W
om


en
in


s
ta


tu
to


ry
m


ar
ria


ge
s


ar
e


en
tit


le
d


to
s


om
e


of
th


e
m


ar
ita


l p
ro


pe
rt


y
up


on
d


iv
or


ce


W
om


en
in


c
us


to
m


ar
y


m
ar


ria
ge


s
ar


e
en


tit
le


d
to


s
om


e
of


th
e


m
ar


ita
l p


ro
pe


rt
y


up
on


d
iv


or
ce




W
om


en
in


c
on


se
ns


ua
l u


ni
on


s
ar


e
en


tit
le


d
to



so


m
e


of
th


e
m


ar
ita


l p
ro


pe
rt


y
up


on
d


iv
or


ce


M
ar


ita
l p


ro
pe


rt
y


is
d


iv
id


ed
e


qu
al


y
up


on
d


iv
or


ce


W
ife


’s
no


nm
on


et
ar


y
co


nt
rib


ut
io


n
is


re
co


gn
iz


ed


in
d


et
er


m
in


in
g


sh
ar


e
of


p
ro


pe
rt


y
sh


e
re


ce
iv


es
in



co


un
tr


ie
s


w
ith


s
ep


ar
at


e
pr


op
er


ty
re


gi
m


es


Ri
gh


t o
f w


om
en


m
ar


rie
d


un
de


r s
ta


tu
at


or
y


la
w


to
in


he
rit


is
re


co
gn


iz
ed


RI
gh


t o
f w


om
en


m
ar


rie
d


un
de


r c
us


to
m


ar
y


la
w


to
in


he
rit


is
re


co
gn


iz
ed


W
om


an
’s


ab
ili


ty
to


in
he


rit
in


a
c


on
se


ns
ua


l
un


io
n


is
re


co
gn


iz
ed


St
at


ut
or


y
re


co
gn


iti
on


is
g


ra
nt


ed
to


c
us


to
m


ar
y


la
w


in


pr
op


er
ty


in
he


rit
an


ce
(t


hr
ou


gh
s


uc
ce


ss
io


n
ac


ts
, f


or
e


xa
m


pl
e)


St
at


ut
or


y
re


co
gn


iti
on


o
f a


m
in


im
um


s
ha


re
th


at
a


w
ife



in


he
rit


s
on


th
e


de
at


h
of


h
er


h
us


ba
nd


W
ife


’s
po


rt
io


n
of


jo
in


t p
ro


pe
rt


y
is


re
co


gn
iz


ed


in
c


as
es


o
f i


nt
es


ta
te


in
he


rit
ia


nc
e


W
id


ow
h


as
ri


gh
t t


o
re


m
ai


n
in


a
nd


u
se


h
ou


se
a


nd
la


nd


of
h


us
ba


nd
u


po
n


hi
s


de
at


h,
a


t l
ea


st
u


nt
il


sh
e


re
m


ar
rie


s


Ri
gh


t o
f m


ai
nt


en
an


ce
fr


om
d


ec
ea


se
d’


s
es


ta
te


Ch
ild


le
ss


w
om


en
h


av
e


rig
ht


to
in


he
rit



if


hu
sb


an
d


di
es


in
te


st
at


e




168


EM
PO


W
ERIN


G
W


O
M


EN


Table A.6 Scoresheet 6: Land Rights in African Countries


Angola Middle Income Civil No Yes No Yes
Benin Low Income Civil Yes Yes No No
Botswana Middle Income Common Yes Yes Yes No
Burkina Faso Low Income Civil Yes No No No
Burundi Low Income Civil No Yes Yes No
Cameroon Middle Income Civil Yes Yes No No
Cape Verde Middle Income Civil — No No No
Central African Republic Low Income Civil Yes No No No
Chad Low Income Civil No Yes — No
Comoros Low Income Civil No No No No
Congo, Demo. Rep. Low Income Civil No Yes — No
Congo, Rep. Middle Income Civil — No No No
Côte d’Ivoire Middle Income Civil Yes Yes No No
Equatorial Guinea Middle Income Civil No No No No
Eritrea Low Income Civil Yes No No No
Ethiopia Low Income Civil Yes No No No
Gabon Middle Income Civil No No No No
Gambia, The Low Income Common No Yes No No
Ghana Middle Income Common Yes Yes Yes No


C


o


u


n


t


r


y


I


n


c


o


m


e




l


e


v


e


l




(


2


0


1


1


)


L


e


g


a


l




s


y


s


t


e


m


W


o


m


e


n




s




l


a


n


d




r


i


g


h


t


s




a


r


e




g


r


a


n


t


e


d




s


t


a


t


u


t


o


r


y




p


r


o


t


e


c


t


i


o


n




u


n


d


e


r




l


a


n


d




l


a


w


s


S


t


a


t


u


t


o


r


y




r


e


c


o


g


n


i


t


i


o


n




i


s




g


r


a


n


t


e


d




t


o




c


u


s


t


o


m


a


r


y




l


a


w




g


o


v


e


r


n


i


n


g




o


w


n


e


r


s


h


i


p




o


r




d


i


s


t


r


i


b


u


t


i


o


n




o


f




l


a


n


d


C


u


s


t


o


m


a


r


y




l


a


n


d




i


s




e


x


e


m


p


t




f


r


o


m




s


u


c


c


e


s


s


i


o


n


W


o


m


e


n




a


r


e




e


n


t


i


t


l


e


d




t


o




c


o


-


o


w


n


e


r


s


h


i


p




t


h


r


o


u


g


h




m


a


r


r


i


a


g


e




SC
O


RESH
EETS



169


Guinea Low Income Civil No No No No
Guinea-Bissau Low Income Civil No Yes — No
Kenya Low Income Common Yes Yes Yes No
Lesotho Middle Income Common No Yes Yes No
Liberia Low Income Common No Yes No No
Madagascar Low Income Civil No Yes No No
Malawi Low Income Common Yes Yes Yes No
Mali Low Income Civil No Yes No No
Mauritania Middle Income Civil No No No No
Mauritius Middle Income Civil Yes No No Yes
Mozambique Low Income Civil Yes Yes No No
Namibia Middle Income Common Yes Yes No Yes
Niger Low Income Civil Yes Yes No No
Nigeria Middle Income Common No Yes Yes No
Rwanda Low Income Civil No Yes Yes No
São Tomé and Principe Middle Income Civil — No No No
Senegal Middle Income Civil No No No No
Seychelles Middle Income Common No No No No
Sierra Leone Low Income Common No Yes Yes No
Somalia Low Income Civil No No No No
South Africa Middle Income Common Yes Yes No Yes
Sudan Middle Income Common No Yes Yes No
Swaziland Middle Income Common No Yes Yes No
Tanzania Low Income Common Yes Yes Yes Yes
Togo Low Income Civil No No Yes No
Uganda Low Income Common Yes Yes Yes No
Zambia Middle Income Common Yes Yes Yes No
Zimbabwe Low Income Common Yes Yes No No


Source: National family, inheritance, and land codes and statutes.
Note: — Not available.




170


EM
PO


W
ERIN


G
W


O
M


EN


Table A.7 Scoresheet 7: Restrictions on and Protection of Women’s Labor Rights in African Countries


Angola Middle Income Civil Yes Yes No Yes No Yes Yes 56 days 100
Benin Low Income Civil Yes Yes Yes Yes No Yes Yes 14 weeks 100
Botswana Middle Income Common No No No No No No Yes 12 weeks 25
Burkina Faso Low Income Civil Yes Yes Yes Yes Yes Yes Yes 14 weeks 100
Burundi Low Income Civil Yes Yes No Yes No Yes Yes 12 weeks 50
Cameroon Middle Income Civil Yes Yes Yes Yes Yes Yes Yes 14 weeks 100
Cape Verde Middle Income Civil Yes Yes No Yes No Yes Yes 45 days Variable


formula
Central African Republic Low Income Civil Yes Yes Yes Yes Yes Yes Yes 14 weeks 50
Chad Low Income Civil Yes Yes Yes Yes Yes Yes Yes 14 weeks 50
Comoros Low Income Civil Yes Yes Yes Yes Yes Yes Yes 14 weeks 100
Congo, Demo. Rep. Low Income Civil Yes Yes Yes Yes Yes Yes Yes 14 weeks 67
Congo, Rep. Middle Income Civil Yes Yes Yes Yes Yes Yes Yes 15 weeks 50
Côte d’Ivoire Middle Income Civil Yes Yes Yes Yes Yes Yes Yes 14 weeks 100
Equatorial Guinea Middle Income Civil Yes Yes Yes Yes No Yes Yes 12 weeks 75
Eritrea Low Income Civil Yes Yes No Yes No Yes Yes 60 days 100
Ethiopia Low Income Civil Yes No Yes Yes No Yes Yes 90 days 100
Gabon Middle Income Civil Yes Yes Yes Yes Yes Yes Yes 14 weeks 100
Gambia, The Low Income Common No No No No No No Yes 12 weeks 100


C


o


u


n


t


r


y


I


n


c


o


m


e




l


e


v


e


l




(


2


0


1


1


)


L


e


g


a


l




s


y


s


t


e


m


S


t


a


t


u


t


o


r


y




p


r


o


t


e


c


t


i


o


n




f


o


r




n


o


n


d


i


s


c


r


i


m


i


n


a


t


i


o


n




i


n




t


h


e




w


o


r


k


p


l


a


c


e


S


t


a


t


u


t


o


r


y




p


r


o


t


e


c


t


i


o


n




i


s




g


r


a


n


t


e


d




t


o




e


q


u


a


l




p


a


y




f


o


r




w


o


r


k




o


f




e


q


u


a


l




v


a


l


u


e


W


o


m


e


n




f


a


c


e




s


t


a


t


u


t


o


r


y




r


e


s


t


r


i


c


t


i


o


n


s




o


n




i


n


d


u


s


t


r


i


e


s




i


n




w


h


i


c


h




t


h


e


y




m


a


y




w


o


r


k


P


r


e


g


n


a


n


t




w


o


m


e


n




f


a


c


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s


t


a


t


u


t


o


r


y




r


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s


t


r


i


c


t


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n


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i


n


d


u


s


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r


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e


s




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n




w


h


i


c


h




t


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y




m


a


y




w


o


r


k


W


o


m


e


n




f


a


c


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s


t


a


t


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t


o


r


y




r


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s


t


r


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c


t


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o


n


s




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n




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o


u


r


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y




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y




w


o


r


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o


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r


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a


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w


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a


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SC
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RESH
EETS



171


Ghana Middle Income Common Yes Yes No No No Yes Yes 12 qeeks 100
Guinea Low Income Civil Yes Yes Yes Yes No Yes Yes 14 weeks 100
Guinea-Bissau Low Income Civil Yes Yes Yes Yes No No Yes 60 days 100
Kenya Low Income Common Yes Yes No No No No Yes 3 months 100
Lesotho Middle Income Common Yes Yes Yes Yes No Yes Yes 12 weeks 0
Liberia Low Income Common No No No Yes No No No n.a. n.a.
Madagascar Low Income Civil Yes Yes Yes Yes Yes Yes Yes 14 weeks 100
Malawi Low Income Common Yes Yes No No No No Yes 8 weeks 100
Mali Low Income Civil Yes Yes Yes Yes Yes Yes Yes 14 weeks 100
Mauritania Middle Income Civil Yes Yes Yes Yes Yes Yes Yes 14 weeks 100
Mauritius Middle Income Civil No No Yes Yes Yes Yes Yes 12 weeks 100
Mozambique Low Income Civil Yes Yes No Yes No Yes Yes 60 days 100
Namibia Middle Income Common Yes Yes No No No Yes Yes 12 weeks 80
Niger Low Income Civil Yes Yes Yes Yes No Yes Yes 14 weeks 50
Nigeria Middle Income Common Yes Yes Yes No Yes No Yes 12 weeks 50
Rwanda Low Income Civil Yes Yes No Yes No Yes Yes 12 weeks 67
São Tomé and Principe Middle Income Civil Yes Yes Yes Yes Yes Yes Yes 60 days 100
Senegal Middle Income Civil Yes Yes Yes Yes Yes Yes Yes 14 weeks 100
Seychelles Middle Income Common Yes Yes No No No Yes Yes 10 weeks Flat rate for


10 weeks
Sierra Leone Low Income Common — — Yes — — — — — —
Somalia Low Income Civil — — — — — — Yes 14 weeks 50


South Africa Middle Income Common Yes Yes No Yes No Yes Yes 4 months 45
Sudan Middle Income Common No Yes Yes No Yes No Yes 8 weeks 100
Swaziland Middle Income Common Yes Yes No No No No Yes 12 weeks 0
Tanzania Low Income Common Yes No No Yes No Yes Yes 84—100 days 100
Togo Low Income Civil Yes Yes No Yes No Yes Yes 14 weeks 100
Uganda Low Income Common Yes No Yes Yes No No Yes 60 days 100
Zambia Middle Income Common No No No No No No Yes 12 weeks 100
Zimbabwe Low Income Common Yes Yes No No No No Yes 98 days 100


Source: National labor codes and statutes.
Note: — Not available.






173


Appendix B


Comparison of Databases
on Women and the Law


Table B.1 Comparison of databases on women and the law


Indicator
Women–LEED–Africa


(47 countries )


Women, Business,
and the Law 2010


(28 countries)


Food and Agriculture
Organization Land Rights
Database (28 countries)


Sources of law Constitutions, international
conventions, and statutes,
each reported separately


Constitutions, international
conventions, and statutes,
but database does not
identify source of law
determining each indicator


Constitutions, international
conventions, and statutes, each
reported separately


Treatment of
customary law


Recognition in constitution,
statutes, or both; extent
of limitations on gender-
based nondiscrimination
protections


Not included Recognition in constitution,
statutes, or both


Property and
land rights


Property rights in marriage,
divorce, and inheritance;
land rights


Gender equality in movable
and immovable property


Land rights


Legal capacity Statutes and recognition
of customary and religious
law; equality in conducting
economic transactions
independently (for
example, opening a bank
account or working outside
the home)


Indicator shows whether
legal capacity is “equal”
or “unequal” but does not
identify which transactions
trip the indicator (future
editions may provide this
information)


Not included


Labor Provisions based on
International Labour
Organization (ILO)
conventions, national
constitutions, and statutes,
each reported separately


Provisions based on ILO
conventions, national
constitutions, and statutes;
includes parental leave


Not included


Database
of laws


Yes Yes Yes


Additional
material


Examples from case law
where confl icting or
overlapping sources of
law apply to illustrate how
women’s economic rights
are interpreted in practice


Information on credit
bureaus and small claims
courts


Statistics on land ownership






175


Appendix C


Database of Court Cases




176


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Table C.1 Database of court cases


Country/case Date Court Citation Source Ruling
Botswana


Molomo v.
Molomo


1979 High Court [1979–80] B.L.R.
250


Griffi ths (1983) Litigants were sophisticated people with business acumen (school teachers
who traveled and lived in the capital). The court awarded the wife half the
value of the cattle, a house, and custody of the couple’s young children,
rejecting the application of customary life on the basis of the mode of life
exemption.


Moisakamo v.
Moisakamo


1980 High Court MC 106 Griffi ths (1983) The court ruled that there is no automatic right to equal division of property
and looked instead at the sources of the couple’s assets. Because their
income was produced by the wife’s efforts, she was theoretically entitled
to more than half of their assets, but pleadings stated that both parties
contributed equally. The mode of life provision was not applied, because the
marriage took place after passage of the Married Women’s Property Act.


Busang v. Busang 1982 Customary Court,
Chief’s court


MO 378/82 Griffi ths (1983) The chief’s court made no award to the wife, on the grounds that she had
practiced witchcraft and deserted her husband. It accepted the earlier decree
of divorce from the High Court based on these allegations.


Seitshiro v.
Seitshiro


1982 Customary Court,
Tswana Chief


— Griffi ths (1983) The court awarded the wife four head of cattle plus the cattle jointly acquired.
She was not awarded estate cattle. Customary law allows a wife to acquire
property on divorce, but customary property is excluded.


Rabantheng v.
Rabentheng


1988 High Court [1988] B.L.R. 260 Quansah (2009) The court awarded the wife one-third of the value of the marital home,
which was in the sole name of the husband, because she had made a direct
fi nancial contribution. The court did not recognize the wife’s nonmonetary
contributions.


AG of the Republic
of Botswana v.


Unity Dow


1995 Court of Appeal [1994] (6) BCLR 1 Lambert and
Scribner (2008)


The court ruled that the citizenship laws, which did not allow women
married to nonnationals to pass their nationality on to their children, was
discriminatory and unconstitutional. Although discrimination on the grounds
of gender was not specifi cally addressed in the Constitution, the court held
that such a provision could be implied in order to give effect to the objectives
of the Constitution. The court’s interpretation thereby expanded the ambit of
the constitutional clause on nondiscrimination.




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Mbenge v.
Mbenge


1997 Court of Appeal [1997] B.L.R.142 Quansah (2009) The court ruled that the principle of universal partnership created a right of
the cohabiting woman to 50 percent of the couple’s assets upon divorce. The
ruling affi rmed the common law right to property for women in consensual
unions or quasi-customary marriages.


Bodutu v.
Motsamai


2006 High Court [2006] 2 B.L. R.
252


Quansah (2009) The court affi rmed the common law right to property for women in
consensual union or quasi-customary marriages, indicating that universal
partnership can arise through a tacit agreement.


Mogorosi v.
Mogorosi


2008 Court of Appeal [2008] BWCA 18 Hubbard (2010) The court applied the principle of universal partnership in recognizing the
woman’s nonmonetary contribution to the business run by the man with
whom she had cohabited for 15 years. The case originated in the customary
courts. The woman had worked for the business and performed household
duties, including caring for the couple’s children. The court awarded her
a 20 percent share of the man’s estate, valued at the date on which the
cohabitation broke down. The ruling affi rmed the common law right to
property for women in consensual unions or quasi-customary marriages.


Cameroon


Alice Fodje v.
Nadans Kette


1986 Court of Appeal [1986] BCA/45/86 Ebi (2008) The court recognized the property rights of a wife in a customary marriage on
divorce. Judge Florence Arrey held that the wife had the right to occupy the
marital home and to collect rent from two other houses.


Ashu v. Ashu 1986 High Court BCA/62/86 Ngwafor (1999) The court ruled that a wife is not entitled to a share of the marital estate
because she herself is property according to customary law.


Affaire Succession
Lonla Kuete


1991 Court of Appeal
West Province


Arret No. 2/
Coutume of 24
October 1991


Ebi (2008) The court rejected primogeniture in favor of male heirs.


Chibikom v.
Zamcho Florence


1993 Supreme Court No. 14/L of 4
February 1993


Ebi (2008) The court ruled that any custom that deprives women of succession rights
to their parents ‘estate is unconstitutional and contrary to public order. The
custom that a married woman did not have the capacity to administer her
father’s estate was overruled.


continued




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Gboron
Yaccoumba v.


Anemena Suzanne
v. Mbombo Asang


and Ndam Emile


1997 Court of Appeal
Bafoussam


Arret No. 002/c 23
October 1997


Ebi (2008) The court rejected a widow’s claim to entitlement from her deceased
husband’s estate under Islamic law on the grounds that under local
customary law, a wife does not inherit.


Baba Iyayi v.
Hadija Aninatoou


2000 Supreme Court Arret No. 083 of 32
March 2000


Ebi (2008) The court ruled that French law supersedes Muslim law if the deceased
contracted a civil marriage. If he did not, Islamic law applies.


Ethiopia


Ms. Kedija Bashir Constitutional
Court


House of
Federation


Cassation Division
Case No. 12400


Ashenafi (2005) The court ruled that under the Constitution, the party had the right to choose
between a civil court and sharia court. Sharia courts have jurisdiction only
when all the parties consent. Article 34(5) of the Constitution states: “This
Constitution shall not preclude the right of parties to voluntarily submit their
dispute for adjudication in accordance with religious or customary laws.
Particulars should be determined by law.”


Gabon


P.E.N. and F.E.O. v.
D.N.B.


1996 Court of Cassation
(highest Court)


Case no.13/95-96


La revue de CERDIP,
131 (2002)


Odinkalu (2005) The court ruled that the Nkodje clan’s custom known as Ntoumou precludes
civic intermarriage among clan members whether or not consanguinity or
affi nity between them is established.


The Gambia


Saika Saidy v.
Theresa Saide,


Albert Henry
Shrubsole and


Jukba Saidy


1973 Supreme Court Civil Suits 1972-A-
147 NS 148


Journal of African
Law (1974)


The court restricted tesamentary discretion in a case involving a Gambian
Muslim who willed all his property to his wife. His brother challenged the will.
The court ruled that the deceased could not dispose of his property under
the Wills Act 1837, that sharia law governed his estate. The repugnancy test
applied only to customary law, not sharia.


Ghana


Quartey v. Martey
and Anor


1959 High Court Ghana L. Rep. 377 Fenrich and
Higgins (2002)


The court ruled that assets acquired through the joint effort of a man, his
wife, and their children and any property the man acquired as a result are, by
customary law, the individual property of the man. The wife’s nonmonetary
contribution is not recognized under customary law. A different decision
would have been reached if there had been a direct fi nancial contribution by
the wife.


Table C.1 Database of court cases continued


Country/case Date Court Citation Source Ruling




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Gyamaah v. Buor 1962 High Court [1962] 1 G.L.R 196 Kuenyehia (2008) A widow who assisted her husband in developing and cultivating 11 cocoa
farms sought a court order declaring that she was entitled to a share of the
farms following his death. Ownership of the farms had passed to the heirs
based on Akan customary laws of inheritance. The lower court held in favor
of the widow’s right to a share of the property on the grounds that she had
assisted in cultivating the farms. On appeal, the High Court overturned the
lower court order, holding that the widow had no right to the property and
could receive a share of the property only because the heir had previously
agreed to share an unspecifi ed portion of the property with her. The court
held that, based on the custom of the parties, the wife was not entitled to
any specifi c share of the property but would receive whatever the defendant
heir chose to give her. Signifi cantly, the High Court stated that had the
widow’s assistance been in the form of a substantial fi nancial contribution,
she would have been “entitled as of right to a share in the properties
acquired by her husband.”’


Esselfi e v. Quarcoo 1992 Court of Appeal [1992] 2 Ghana L.
Rep. 180


Fenrich and
Higgins (2002)


Chief Justice Georgina Wood held that a marriage can be recognized even
if customary rites and ceremonies were not fully performed if (a) the parties
agreed to live together as man and wife and they did in fact so live; and (b)
they obtained the consent of their two families to the marriage. Consent, the
court rule, can be implied by conduct.


Kenya


I v I 1971 High Court [1971] EA 278 Baraza (2009) The court held that the Married Women’s Property Act applied to marriages
solemnized in Kenya.


Karanja v. Karanja 1976 High Court (2008) 1 KLR (G&F)
171; [1976-80] 1
KLR 389


Baraza (2009) The court rejected the argument that under Kikuyu customary law women
do not own property because they are under their husbands. It rejected
discriminatory customary law regarding division of property on divorce,
applying statutory law (the Married Women’s Property Act) to award the wife
one-third of the couple’s property.


Otieno v. Ougo 1987 Court of Appeal (2008) 1 KLR (G&F) Stamp (1991) The claim of the widow and children to determine the burial arrangements for
the deceased (with resulting implications for the division of the estate) were
set aside in favor of the customary laws of the husband’s clan.


continued




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Kivuitu v. Kivuitu 1991 Court of Appeal 1991 2 KAR 241 Baraza (2009) The court applied the principle of nondiscrimination and equal protection of
the law in recognizing the wife’s nonmonetary contribution in the form of
domestic chores and labor on their subsistence farm.


Essa v. Essa 1996 High Court (1996) EA 53 Baraza (2009) The court relied on the Married Women’s Property Act to award property to
a divorced woman who had married under Islamic law. The court reiterated
the holding in I v. I that the Married Women’s Property Act applies equally to
Muslims and non-Muslims.


Omar Said Jaiz v.
Naame Ali


— — — Baraza (2009) The court took Kivuitu one step farther to rule that, even without clear
evidence of the extent of the actual contribution made by both spouses, the
property is considered joint property because it was acquired through a joint
venture. The ruling thus recognized the nonmonetary contribution of the wife.


Estate of Lerionka
Ole Ntutu


2000 High Court [2008]eKLR Killlander (2010) The court overruled the application of the Maasai custom that disentitles
daughters from claiming their father’s inheritance in ruling that the daughters
of a Maasai man who died intestate had a legitimate claim to inherit his
property. The court overruled the application of sections of the Succession
Act that require application of customary law in inheritance of agricultural
land in certain areas to the extent that it discriminated against the daughters.
The judge noted that it would violate human dignity and gender equality to
construe the Constitution as allowing discrimination against women.


In re Wachokire 2002 Chief Magistrates
Court Thika


Succession Cause
No. 192 of 2000


Partners for
Gender Justice
Report of the
Accra Conference
(2008)


Magistrate H. A. Omondi ruled that under Kikuyu customary law, an
unmarried woman lacked equal inheritance rights because of the expectation
that she would marry. The court held that this customary provision
discriminates against women, in violation of Section 82(1) of the Kenyan
Constitution. It also violates Article 18(3) of the Banjul Charter and Article
15(1)-(3) of the Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW), which provide for legal equality for men and
women.


Andrew Manunzyu
Musyoka


(Deceased)


2005 High Court eKLR 1, 7
(High Court] at
Machakos)


Ndulo (2011) The court relied on the principles of equality and nondiscrimination in CEDAW
to safeguard women’s property rights against discriminatory Kamba customs
that held that a daughter is not supposed to inherit from her father’s estate.
Justice Lenaola used CEDAW to declare the custom repugnant to natural
justice and the doctrines of equity.


Table C.1 Database of court cases continued


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Mary Rono v. Jane
Rono and another


2005 Court of Appeal (2008) 1 KLR (G&F) Ndulo (2011) The deceased died intestate, leaving behind a vast tract of land and other
properties. The court held that there was no reasonable basis for drawing
a distinction between sons and daughters in determining inheritance, t hat
the principles of equality and nondiscrimination prevailed over customary
law, which disinherits women. The court applied international law directly to
Kenya, a dualist state, basing its action on contemporary thinking on common
law theory, which allows application of international and treaty law even
where they are not domesticated where there is no confl ict. Constitutional
principles of equality and nondiscrimination trumped customary law.


Echaria v. Echaria 2007 Court of Appeal [2007] Eklr; [2007]
KECA 1 (2 February
2007) [


Federation of
Women Lawyer’s
Kenya (FIDA)
and Georgetown
University Law
Center (2008)


A fi ve-judge bench overturned earlier decisions of the High Court and Court
of Appeal on the recognition of nonmonetary contribution, holding that
division of property in marriage is determined by the general laws of contract
in Kenya and that a woman must demonstrate having made a monetary
contribution. The court rejected the principle of nonmonetary contribution.
This decision applies to all similar cases in the future, unless they can be
distinguished on the facts or overturned by a full bench of the Court of
Appeal.


Lesotho


Shuping v.
Motsoahae


1977 High Court [1977] LLR p.174 Cotula (2006) The court held that family property is administered exclusively by the
husband, upholding the alienation of a joint estate without the wife’s
consent. This decision may be affected by the Legal Capacity of Married
Persons Act 9 of 2006, which applies to civil but not customary marriages.


Malawi


Poya v. Poya 1979 High Court Civil Appeal No. 38
of 1979 N.T.A.C.


Mwambene
(2005) a


The court ruled that the marital home built by the husband in the wife’s
village belongs to the wife. Customary law benefi ted women in this instance.


Malinki v. Malinki,
Mtegha v. Mtegha


1994 Magistrates Court MC 9MLR 441 Women and Law
Southern Africa
(2009)


The court ruled that a spouse wishing to claim a share of property not in his
or her name must demonstrate having made a fi nancial contribution to its
acquisition. Contributions to maintenance of property items, housekeeping,
and child care are not suffi cient.


Sinalo v
Sinapyanga and


others


1995 High Court Civil Cause No.
544/1995


Women and Law
Southern Africa
(2009)


The court awarded a widow 20 percent of the business that formed part
of the estate of her deceased husband based on evidence of the fi nancial
contribution she had made to it but rejected her claim to a proprietary
interest in her deceased husband’s house after refusing to recognized her
nonmonetary contribution without evidence of domestic labor.


continued




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Georgina
Mazunyane v.


Rodney Chalera


2004 Magistrates Court Civil Case No. 75 of
2004, Mulunguzu
Magistrate Court
(unreported)


Mwambene
(2005)


The court divided marital property equitably on customary divorce.


Nyangulu v.
Nyangulu


— High Court 10 Malawi Law
Reports 435


Women and Law
Southern Africa
(2009)


The court did not recognize the wife’s nonmonetary contribution, ruling that
“inference of joint ownership of property is not to be made from a mere fact
of marriage.”


Barnet Phiri v.
Fanny Phiri


2006 High Court Civil Appeal Cause
No. 15 2006


Women and Law
Southern Africa
(2009)


The court held that on dissolution of a customary marriage, all marital
property, not just property offi cially held jointly, must be divided equitably.


Mauritius


Bhewa v.
Government of


Mauritius


1990 Supreme Court [1991] LRC (Const) http://www.
endvawnow.org/
en/articles/764-
family-law-and-
marriage-laws.
html


The court ruled that a Muslim couple’s right to apply certain Islamic laws on
marriage, divorce, devolution of property, and polygamy is not guaranteed by
the Constitution, because these practices violate civil laws that protect the
common good and prevent discrimination against women. The appeal by the
petitioners from the lower court was dismissed. The ruling established that
civil law principles prevail over parties in a religious marriage.


Namibia


Myburg v.
Commercial Bank


of Namibia


2000 Supreme Court NR255 (SC) Hubbard (2005) The court ruled that unconstitutional common laws are automatically
invalidated by the provisions of the Constitution. It indicated that customary
law in force at the time of independence would survive only if it were not in
confl ict with the Constitution.


Mofuka v. Mofuka 2001 High Court 2001 NR 318 (HC) Hubbard (2005) The court ruled that an unregistered oral prenuptial agreement, express or
implied, was valid. Such an agreement binds only the husband and wife,
however, not a third party.


Berendt v.
Stuurman


2003 High Court Unreported
Judgment Case No
(P) 105/2003


Hubbard (2005) The court declared several sections of Native Proclamation 15 of 1928
unconstitutional and gave the legislature a deadline for replacing the
offensive sections. Reform of the offending provision has not yet been carried
out. Provisions relating to the administration of estates were changed to give
a choice to the indigenous population.


Table C.1 Database of court cases continued


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Nigeria


Nezianya v.
Nezianya


1963 — 1963 NLR 352 Women Aid
Collective (2008)


The court held that under the native law and custom of the Onitsha, a
widow’s possession of her deceased husband’s property is not that of a
stranger, is not adverse to her husband’s family, and does not make her the
owner, however long she holds the property.


Adesubokan v.
Yinusa


1971 Supreme Court [1971] N.N.L.R. 77 Oba (2011) The court upheld the right of a Muslim man to write an English statutory will.


Egunjobi v.
Egunjobi


1976 Western State
Court of Appeal


[1976] 2 F.N.R. 78 Women in Law
and Development
Africa—Nigeria
(2002)


The court awarded the wife a third of the marital property after she provided
evidence of her actual contribution, including receipts for the construction
of the building acquired during the marriage. The case recognized the wife’s
nonmonetary contribution but required proof of contribution to establish the
share to which she was entitled.


Adeyemi v.
Adeyemi


1985 — [1985] Suit No
CB/354D/85


Women in Law
and Development
Africa—Nigeria
(2002)


The court held that the failure of the wife to provide receipts in evidence
of her monetary contribution to the property acquired during the marriage
disentitled her to the property upon divorce. Her nonmonetary contribution
was not recognized.


Kaffi v. Kaffi 1986 Court of Appeal [1986] 3 Nigeria
Weekly Law Report
(NWLR); part 2;
p. 175.


Women in Law
and Development
Africa—Nigeria
(2002); IFHR
(2008)


The court held that the wife’s contribution need not be fi nancial in nature. The
fact that the wife took care of her husband and family and that the husband
had the peace of mind to acquire the property gave the wife an interest in
such property. It recognized her nonmonetary contribution under the just and
equitable provision in the Matrimonial Causes Act 1970.


Amadi v. Nwosu 1989 Supreme Court [1992]
LPELR-SC.14/1989


IFHR (2008) The Supreme Court upheld the High Court’s decision that in a customary
law marriage, where a wife does not have a right to property ownership,
she must prove her monetary contribution to family property before she can
invoke other laws to claim joint ownership of property. Under customary law,
nonmonetary contribution is not recognized.


Nzekwu v.
Nzekwu


1989 Supreme Court [1989] 2 NWLR
P. 373


IFHR (2008) The court held that a widow’s dealings with her husband’s property must
receive the consent of his family, that she cannot claim the property as her
own. It ruled that she cannot administer her husband’s estate on her own
and has no ownership rights to that estate.


continued




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Onwchekwe v.
Onwuchekwe


1991 Court of Appeal (1991) 5 NWLR (pt.
197) 739


IFHR (2008) The court held that the wife did not make a direct fi nancial contribution to the
marital home and that her labor was not suffi cient to entitle her to a share of
the martial assets. It also upheld that the Isikwuato custom in which a wife
is owned with her properties by her husband as chattel Is not repugnant.
According to the ruling, “Because the court is dealing with a customary law,
which is peculiar to the people, the determining factor or factors should not
be the English Common Law but must be Nigerian Law. It is good law that
customary law cannot be said to be repugnant to natural justice, equity and
good conscience merely because it is inconsistent with or contrary to English
law, as the test of the validity of customary law is never English law.”


Nkeaka v. Nkeaka 1994 Court of Appeal 5 NWLR (Part 346)
599


IFHR (2008) The court ruled that daughters cannot inherit land under customary law but
can inherit money.


Akinnubu v.
Akinnnubi


1997 Supreme Court (1997) 2 NLWR
144


Nwabueze (2010) The court confi rmed the legal legitimacy of the Yoruba practice in which
daughters but not widows can inherit from men who die intestate, ruling that
“under Yoruba customary law, a widow under intestacy is regarded as part
of the estate of her deceased husband to be administered or inherited by the
deceased family. She could neither be entitled to apply for a grant of letters of
administration nor appointed as co-administratrix.”


Mojekwu v.
Mojekwu


1997 Court of Appeal (1997) 7 NWLR; Pt
512; 283


International
Federation of
Human Rights
Nigeria NGO
Coalition Shadow
Report (2008)


The court set aside the Oliekpe custom that disentitles a daughter from
inheriting the property of her father where no son survives him.


Mojekwu and
others v. Ejikeme


and others


1999 Court of Appeal 5 NWLR 402, Women in Law
and Development
Africa—Nigeria
(2002)


The two great-grandsons and the granddaughter of a man who died
intestate appealed the ruling of a lower court in favor of fi ve male members
of the family of his brother. The case involved the practice of Nnewi, which
pertains when a man leaves behind daughters but no sons. Under these
circumstances, the daughter must remain unmarried and bear children who
effectively become her dead father’s heirs to inherit and carry on the male
lineage. The appellants claimed that Nnewi had been performed for the
deceased’s daughter (the appellants’ mother and grandmother),


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which entitled her and her children to inherit the property. The respondents
claimed that the custom of Nnewi had been performed for the deceased’s
other daughter, Comfort, entitling her and any of her children to inherit the
property. Because Comfort had died childless, however, under customary
law, the deceased died without a surviving male heir, thereby causing the
property to pass to the deceased’s brother or the brother’s male issue. On
appeal, the court found that these customs discriminated against women and
were “repugnant to the principles of natural justice, equity and good sense.”
The court concluded that the appellants, as blood relations, were entitled to
inherit the estate of the deceased and that it would be inequitable to throw
them out of their home. Although not explicitly stated, the court based its
ruling on the fundamental rights guaranteed to women under Nigeria’s
constitution and an international convention to which Nigeria was a party.


Mojekwu v.
Iwuchukwu


(appeal of
Mojekwu v.


Mojekwu)


2004 Supreme Court (2004) NWLR Pt
883 pg. 196


Nwabueze (2010) The Supreme Court overturned the earlier decision of the Court of Appeal
that there was no justifi cation for the lower court to have pronounced
the Ibo custom of Nnewsi repugnant to natural justice, equity, and good
conscience, as its repugnancy was not part of the issues joined by the parties.
Justice Uwaifo ruled that the language used in the lower court made the
pronouncement so general and far-reaching that it seemed to undermine,
and was capable of causing strong feelings against, all customs that failed to
recognize a role for women. The undermining of customary law in this way
was not justifi able.


Obusez v. Obusez 2001 Court of Appeal [2001] 15 N.W.L.R.
377


Nwabueze (2010) The brothers of the deceased argued that they—and not the man’s widow
and infant children—were entitled to administer his estate. They based
their argument on Agbor customary law 25, which deems a widow to be
chattel to be inherited and therefore, they claimed, unqualifi ed for letters
of administration. They invoked the fact that the widow had been married
under Marriage Act 27 rather than customary law. The trial court held that a
widow who had been married under statute is not a chattel and is entitled
to letters of administration. In affi rming this decision, the Court of Appeal
suggested that the opposite would be true of a widow in the same position
who had been married under customary law, in which case Agbor customary
law would apply.


continued




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Uke v. Iro 2001 Court of Appeal 11 NWLR 196 International
Federation of
Human Rights
Nigeria NGO
Coalition Shadow
Report (2008)


The court overruled on constitutional grounds discriminatory customary law
relating to inheritance, ruling that any law or custom that seeks to relegate
women to the status of second-class citizens, depriving them of their
invaluable and constitutionally guaranteed rights, is unconstitutional and
should be consigned to history.


Ukeje v. Ukeje 2001 Court of Appeal 11 NWLR 196 International
Federation of
Human Rights
Nigeria NGO
Coalition Shadow
Report (2008)


The court voided the Igbo law and custom disentitling a daughter from
sharing in her father’s estate on the grounds that it violates the provisions of
Section 42 (2) of the 1999 Constitution.


Amusan v.
Olawumi


2002 Court of Appeal FWLR 1385 International
Federation of
Human Rights
Nigeria NGO
Coalition Shadow
Report (2008)


The court held that under Yoruba customary law, both sons and daughters are
entitled to inherit their parents’ land.


Hon. Emokpae
and Three Others.


v. Mrs. Nekpen
Idubor


2003 — 12 NWLR Part 849 IFHR (2008) The court ruled that the widow of an intestate man who had been married
under Bini native law and custom and who was therefore not entitled to
inherit can commence an action against the administration of the estate to
protect the interest of her children, who are benefi ciaries of the estate, and
her personal interest, where it is affected by the administration of the estate.


Muhammadu v.
Muhammadu


2003 — [2003] 6 WRN 36 IFHR (2008) The court ruled that female heirs are allowed to share in an inheritance like
male heirs, in a modifi ed manner. Inheritance is determined by Sharia law.


Mgbemere v.
Mgbemere and


Oyigboku Suit


2004 — No/WD/143/04 International
Federation of
Human Rights
Nigeria NGO
Coalition Shadow
Report (2008)


In divorce proceedings, the court granted the wife ownership of one of the
properties acquired during the marriage.


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South Africa


Mabuza v. Mbatha 2003 High Court [2003] (4) SA 218 Lambert and
Scribner (2008)


The court ruled that customary law can regulate marriage, as long as it does
not contravene the equality clause in the Constitution.


Nonkululeko Letta
Bhe and Others


v. Magistrate
Khayelitisha


2003 Constitutional
Court


Case CCT 49/2003 Fenrich, Higgins,
and Tanzer (2007)


The court invalidated a codifi ed customary law of succession as
unconstitutional. Bhe, who had been cohabiting with the deceased, and her
two daughters were declared the only heirs. The court claimed that the ruling
was just and equitable based on the provisions of the South African Intestate
Succession Act.


Elizabeth Gumede
v. President of the


Republic of South
Africa


2008 Constitutional
Court


Case CCT 50/08
[2008] ZACC 23


Hirschl and
Shachar (2009)


The court declared unconstitutional the customary law in which the husband
is the family head and owner of all family property, which he may use in
exclusive discretion. It held that customary law that implied that women were
not fi t or competent to own and administer property violated their right to
dignity and equality under the constitution.


Hassam v. Jacobs 2008 High Court Case No.
5704/20045


Osman-Hyder
(2011)


The court ruled that a polygamous widow in an Islamic marriage could inherit
under the Intestate Succession Act, that there was no justifi cation to exclude
her.


Shilubana
and Others v.


Nwamitwa


2008 Constitutional
Court


http://www.
constitutionalcourt.
org.za/uhtbin/
cgisirsi/
nMq9DS8Vwd/
MAIN/0/57/518/0/
J-CCT3-07C


Lambert and
Scribner (2008)


The Constitutional Court upheld the decision of the traditional court to allow
the daughter of the deceased chief to succeed to his title. The traditional
court’s decision represented a break with earlier rulings, which restricted
succession to male heirs. The Constitutional Court upheld the jurisdiction of
traditional courts to evolve customary law in line with contemporary social
values.


Swaziland


Mary-Joyce
Doo Aphane v.


Registrar of Deeds,
Minister of Justice


and Constitutional
Affairs and the


Attorney General


2010 High Court Civil case No.
383/2009


IRIN (2010a) The attempt by a woman, who was married under a community of property
regime, to register property jointly in her name and the name of her spouse
was not allowed under a provision of the Deeds Registry Act. The court upheld
her claim that the provision was discriminatory and therefore unconstitutional.
Signifi cantly, the judge (the fi rst woman appointed to the High Court) used
her powers under the Constitution to change the wording of the offending
provision so that it would allow registration of community property by women.
Under Section 151 (2) of the Constitution, the High Court has jurisdiction
to enforce fundamental human rights and freedoms guaranteed by the
Constitution, including the right to equality, which is guaranteed by the
Constitution.


continued




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Attorney General
v. Aphane


2010 Supreme Court [2010] SZSC 32 IRIN (2010b) The Attorney General appealed the Mary-Joyce Doo Aphane case to the
Supreme Court. The Supreme Court in May 2010 upheld the unconstitutionality
of the discriminatory provision, but overturned the High Court Judge’s decision
to “severe” and “read in” the Act on this occasion. It suspended the declaration
of illegality for a year, allowing married women to register property in the
interim, and allowing for Parliament to amend the legislation in the meantime.
However, two years later, Parliament has not amended the legislation.


Tanzania


Bi Hawa
Mohamed v. Ally


Sefu


1983 Court of Appeal (9 of 1983) [1983]
TZCA 1


Ellis (2007) The court recognized the domestic role of a housewife as a legitimate
contribution to marital welfare entitling her to part of that property on the
dissolution of the marriage.


Mohamed
Abdallah v. Halima


Lisangwe


1988 High Court TLR 197 Tanzania Rwebangira
(1996)


The court recognized the clearing of the site by the wife where a house
was built as nonmonetary contribution. It also observed that during the
course of the (Islamic) marriage, during which the house was built, the wife
bore children, reared them, and took care of the marital home, freeing her
husband to engage in economic activities. She was therefore entitled to the
fruits of her efforts on the dissolution of her marriage.


Keticia Bgumba v.
Thadeo Maguma


and another


1989 High Court High Court,
Mwanza,
Mwalusanya J.,
Civil App. No. 8/89
(July 18 1989)


Rwezaura (1991) The court recognized the nonmonetary contribution of a woman during the
two years she had cohabited in a consensual union with her husband. The
court held that the woman had established the existence of a marriage by
cohabitation and repute and that she could therefore claim a share or interest
in a house in dispute by virtue of section 160(2) of the Law of Marriage Act.


Richard Wilham
Sawe v. Woitara


Richard Sawe


1992 Court of Appeal Civil Appeal No. 38
of 1992, TZCA, 9
June 1994


Peter (2007) The court held that division of marital property at divorce should be done on
a 50:50 basis regardless of the mode of acquisition.


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Scholastica
Benedict v. Martin


Benedict


1993 Court of Appeal Mwanza Court of
Appeal Cil. App.
No. 26/88


Rwezaura (1991) The court upheld discriminatory customary law relating to supremacy of
rights of the male heir. The second (junior) wife, who had one daughter by
the deceased, had appealed the decision of the lower court upholding the
application of customary law in favor of the inheritance rights of a male
heir, the eldest son of nine children by the fi rst (senior) wife, over the second
wife’s rights to reside with her unmarried daughter in the home in which they
had lived with the deceased for more than 15 years. The court held that any
marital right the second wife had to reside in the house in which she had
lived with the deceased was contingent on whether her daughter had a right
to the property that was superior to the male heir’s right. Because the male
heir’s right took precedence, even though he, the fi rst wife, and eight other
children resided in another house, the court upheld the lower court decision
evicting the second wife and her daughter from the home.


Pulcheria Pundugu
v. Samuel Huma


Pundugu


1995 High Court TLR 7 Quansah [2004] The court disregarded Sukuma customary law and awarded the wife part of
the marital property based on her nonmonetary contribution on dissolution
of the marriage.


Bernado Ephraim
v. Holaria Pastory


and Another


2001 High Court (2001) AHRLR 236 Ellis (2007) The court set aside Haya customary law in favor of the principle of
nondiscrimination, ruling that women can inherit land, including clan land
under Haya customary law, and are capable of disposing of such land.


Ndossi v. Ndossi 2001 High Court Civil Appeal No. 13
of 2001


Global Justice
Center (n.d.)


Judge E. Munuo, a woman, held that the widow was entitled to administer
the estate on behalf of her children under the Constitution, which provides
that “every person is entitled to own property and has a right to the
protection of that property held in accordance of the law.” She further
held that Article 9(a) and (f) of the Constitution recognize human rights by
requiring “that human dignity is preserved and upheld in accordance with
the spirit of the Universal Declaration of Human Rights,” explaining that


this clause generally domesticates human rights instruments ratifi ed by
Tanzania, including the antidiscrimination principles of CEDAW, Articles 2(b)
and (f), and the best interest of the child principle found in Article 3 of the
Convention on the Rights of the Child.


continued




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Uganda


Muwanga v. Kintu 1997 High Court Divorce Appeal
No. 135


Ministry of Justice
and Constitutional
Affairs of Uganda
(2008)


The court ruled that a wife in a customary marriage was entitled to marital
property, which she had earned through her nonmonetary contributions.


Uganda
Association of


Women Lawyers v.
AG Constitutional


Petition No.2 of
2002


2002 Constitutional
Court


Constitutional
Court, 10 March
2002


Ellis (2006) The court repealed sections of the Divorce Act that discriminated against
women. When a woman sought a divorce, she had to prove adultery and
show that her husband had deserted her, been cruel to her, or failed to
maintain her. In contrast, a man had to prove only adultery to obtain a
divorce. The Strategic Litigation Coalition brought the case. The court declared
the discriminatory provisions unconstitutional.


Zambia


Chibwe v. Chibwe 2000 Supreme Court Appeal No.
38/2000 SCZ
(Zambia)


UN-Habitat (2005) The court ruled that the wife, who had been married under Ushi customary law,
was entitled to property following her divorce. It awarded her the house built by
her husband on a plot registered in her name, and ordered the husband to pay
her damages for having attempted to defraud her of the house.


Zimbabwe


Khoza v. Khoza 1997 High Court HH 106 UN-Habitat (2005) The couple had been married under customary law for 23 years, during which
time the wife had built and maintained the matrimonial homestead, which
was on communal land. Upon dissolution of marriage, the court denied
her any right to the matrimonial home and residence on the grounds that
the marriage was patrilocal. She was awarded the family’s town house in
Bulawayo, even though her means of subsistence was farming.


Chapeyama v.
Matende and


Another


2000 High Court (2) 356 (s) Government of
Zimbawe (2009)


The spouses were married in 1990 under customary law. During their marriage,
they had two children and acquired several properties jointly, including a house
registered in both their names. Upon the breakdown of the marriage, the
husband made an application to the court to have the wife’s name removed
from the deed of assignment. The wife counterclaimed for a fair distribution of
all asserts in the house. The High Court decided in favor of the wife, holding
that the application of the concept of a tacit universal partnership was fully
justifi ed. In dismissing the husband’s appeal, the Supreme Court recommended
a review of marriage laws to specifi cally recognize unregistered customary law
marriages, as was done under the Administration of Estates Act.


Note: — Not available.


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DATABASE OF COURT CASES 191


References
Ashenafi , Meaza, and Zenebeworke Tadesse. 2005. “Women, HIV/AIDS, Property and


Inheritance Rights: Th e Case of Ethiopia.” UNDP New York: UNDP.
Baraza, Nancy. 2009. “Family Law Reforms in Kenya: An Overview.” Paper presented at


the Heinrich Böll Foundation’s Gender Forum, Nairobi, April 30.
Cotula, Lorenzo. 2006. Gender and Law, Women’s Rights in Agriculture. FAO Legislative


Study 76 Rev. 1, Food and Agricultural Organization, Rome.
Ebi, Joseph Nzalie. 2008. “Th e Structure of Succession Law in Cameroon: Finding a


Balance between the Needs and Interests of Diff erent Family Members.” Ph.D. thesis,
University of Birmingham, Department of Law, United Kingdom.


Ellis, Amanda, Claire Manuel, and Mark Blackden. 2005. Gender and Economic Growth
In Uganda: Unleashing the Power of Women. World Bank Directions in Development
Series, Washington, DC.


Ellis, Amanda, Mark Blackden, Jozefi na Cutura, Fiona MacCulloch, and Holger See-
bens. 2007. Gender and Economic Growth in Tanzania. World Bank FIAS-GEM Series,
Washington, DC.


Federation of Women Lawyers–Kenya, and the International Women’s Human Rights
Clinic, Georgetown University Law Center. 2008. “Kenyan Laws and Harmful Cus-
toms Curtail Women’s Equal Enjoyment of ICESCR Rights: A Supplementary Sub-
mission to the Kenyan Government’s Initial Report under the ICESCR,” scheduled
for review by the Committee on Economic, Social, and Cultural Rights during its 41st
session, November 3–21.


Fenrich, Jeanmarie, and Tracy E. Higgins. 2002. “Promise Unfulfi lled: Law, Culture,
and Women’s Inheritance Rights in Ghana.” Fordham International Law Journal 25:
259–341.


Fenrich, Jeanmarie, Tracy E. Higgins, and Ziona Tanzer. 2007. “Gender Equality and
Customary Marriage: Bargaining in the Shadow of Post-Apartheid Pluralism.” Ford-
ham International Law Journal 30: 1653–708.


Global Justice Center. n.d. “Legal Tools. CEDAW Case Bank.” http://www.globaljustice
center.net/casebank/bycountry/tanzania.html.


Government of Zimbabwe. 2009. Zimbabwe CEDAW Report . Harare.
Griffi ths, Anne. 1983. “Legal Duality: Confl ict or Concord in Botswana?” Journal of


African Law 27 (2): 150–61.
Hirschl, Ran, and Ayelet Shachar. 2009. “Th e New Wall of Separation: Permitting Diver-


sity, Restricting Competition.” Cardozo Law Review 30: 2535–59.
Hubbard, Dianne, and Beth Terry 2005. Marital Property in Civil and Customary Mar-


riages: Proposals for Law Reform. Gender Research and Advocacy Project: Legal Assis-
tance Center, Namibia.


IFHR (International Federation of Human Rights). 2008. Nigeria NGO Coalition Shadow
Report to the CEDAW Committee. Paris.


IRIN. 2010a. “Swaziland: Some Women Can Now Own Property.” February 25. http://www
.irinnews.org/Report/88230/SWAZILAND-Some-women-can-now-own-property.


———. 2010b. “Women’s Rights Take One Step Forward, Two Steps Back.” June 16.
http://www.irinnews.org/printreport.aspx?reportid=89510




192 EMPOWERING WOMEN


Journal of African Law. 1974. Editorial on “Cases Supreme Court of the Gambia, Saika
Saidy v Th eresa Saidie, Albert Henry Shrubsole and Jibaka Saidy.” 18: 183–9.


Killander, Magnus, ed. 2010. International Law and Domestic Human Rights Litigation in
Africa. Pretoria University Law Press, Pretoria.


Kuenyehia, Akua. 2008. “Women, Marriage and Intestate Succession in the Context of
Legal Pluralism in Africa.” JENda: A Journal of Cultural and African Women’s Studies.
http://www.africaknowledgeproject.org/index.php/jenda/article/view/569.


Lambert, Priscilla, and Druscilla Scribner. 2008. “Gender Matters: A Case Study Analysis
of Constitutional Provisions.” Paper presented at the annual meeting of the American
Political Science Association, Boston, August 28.


Ministry of Justice and Constitutional Aff airs of Uganda. 2008. Final Report on the Inte-
grated Study on Land and Justice. Kampala.


Mwambene, Lea. 2005. “Divorce in Matrilineal Customary Law Marriage in Malawi:
A Comparative Analysis with the Patrilineal Customary Law Marriage in South
Africa.” University of the Western Cape, Cape Town, South Africa.


Ndulo, Muna. 2011. “African Customary Law, Customs, and Women’s Rights.” Cor-
nell Law Faculty Publications 187, Ithaca, NY. http://scholarship.law.cornell.edu/
facpub/187.


Ngwafor, Ephraim. 1991. “Cameroon: Property Rights for Women: A Bold Step in the
Wrong Direction.” Journal of Family Law 29 (2): 297–302.


Nwabueze, Remigius N. 2010. “Securing Widows’ Sepulchral Rights Th rough the Nige-
rian Constitution.” Harvard Human Rights Journal 23: 141–55.


Oba, Abdulmumini A.2011. “Religious and Customary Laws in Nigeria.” Emory Inter-
national Law Review 25: 881–95.


Osman-Hyder, Munirah. 2011. “Th e Impact and Consequences of Hassam and Jacobs
on Polygamous Marriages.” Stellenbosch Law Review 22 (2): 233–46.


Partners for Gender Justice. 2008. Th e Role of the Judiciary in Promoting Gender Justice
in Africa. Report of the Accra Conference. Accra.


Peter, Chris Maina, and Helen Kijo-Bisimba. 2007. Justice in Tanzania: Quarter of a
Century of the Court of Appeal. Legal and Human Rights Center. Mkuki Na Nyoka
Publishers, Dar Es Salaam.


Quansah, E. K. 2004. “Recent Developments: Determining Matrimonial Residence of
Non-Domiciled Spouses: Th e Applicable Law in Botswana.” Journal of African Law
48: 104–10.


———. 2009. “Some Contemporary Challenges Facing Family Law in Botswana.” Univer-
sity of Botswana Law Journal 9 (June): 25–48


Odinkalu, Chidi A. 2005. Pluralism and the Fulfi llment of Justice Needs in Africa. Open
Society Institute, Africa Governance Monitoring and Advocacy Project, New York.


Rwebangira, Magdelena K. 1996. Th e Legal Status of Women and Poverty in Tanzania.
Nordika Afrikain Institutet, Uppsala, Sweden


Rwezaura, B.A. 1990–91. “Tanzania: Family Law and the New Bill of Rights.” Journal of
Family Law 29: 453–61.




DATABASE OF COURT CASES 193


Stamp, Patricia. 1991. “Burying Otieno: Th e Politics of Gender and Ethnicity in Kenya.”
Signs 16 (4): 808–45.


UN-Habitat. 2005. Land Tenure and Housing Review Zambia. Nairobi.
WACOL (Women’s Aid Collective). 2008. CEDAW and Accountability to Gender Equality


in Nigeria Shadow Report. Lagos.
Women and Law Southern Africa. 2009. Malawi CEDAW Shadow Report. December,


Limbe.
Women in Law and Development Africa–Nigeria. 2002 Advocacy for Better Implementa-


tion of Women’s Rights in Africa. July, Lagos.






195


A
Abdallah v. Lisangwe (Tanzania, 1988), 104b
Abolition of Marital Power Act 34 of


2004 (Botswana), 61b, 62, 151b
access to judicial systems, 15–16, 121,


125–27, 126f
recommendations, 141, 144–46


accountability, 17, 140, 142
Adeyemi v. Adeyemi (Nigeria, 1985), 117n10
adultery, 117n2, 130
African Charter on Human and Peoples’


Rights, 93
agricultural productivity and property


rights, 4b, 30
Akinnubi v. Akinnubi (Nigeria, 1997),


107, 110, 118n15
All India Muslim Personal Law Board,


152n3
alternative dispute resolution


mechanisms, 146
Aphane v. Registrar of Deeds, Minister


of Justice and Constitutional
Aff airs and the Attorney General
(Swaziland, 2010), 95


Ashu v. Ashu (Cameroon, 1986), 110
Association des Femmes Juristes du


Benin, 151b
Attorney General of the Republic of


Botswana v. Unity Dow (Botswana,
1994), 96, 100b, 126–27


Ayuko, Bonita, 132n3


B
Banjul Charter, 93
banking, 11, 23, 62
bankruptcy law, 23
Bashir, Kedija, 112
Benedict v. Benedict (Tanzania,


1993), 110
Benin


constitutional nondiscrimination
provisions in, 93


customary law in, 105, 107, 109
family law reforms in, 151b
legal capacity in, 62
prenuptial contracts in, 66b
statutory law in, 97


Benin Constitutional Court Decision No.
DCC 02-144 (Benin, 2004), 93


Berendt v. Stuurman (Namibia, 2003),
98b


Beshir v. 3rd Naiba Court (Ethiopia,
2004), 111


Besley, Timothy, 4b, 36n14
Bgumba v. Maguma (Tanzania, 1989),


104b
Bhe v. Khayelitsha Magistrate and the


President of the Republic of
South Africa (South Africa,
2004), 94, 110


Black Administration Act of 1927 (South
Africa), 94


Black Sash (South Africa), 145b


Index


Boxes, fi gures, notes, and tables are indicated by b, f, n, and t following the page number.




196 INDEX


Botswana
awareness of legal rights in, 126
constitutional nondiscrimination


provisions in, 100b
customary law in, 51b, 57, 107, 127,


129b, 130
default property regimes in, 68
family law reforms in, 151b
gender equality provisions lacking in, 47
impact litigation in, 96
judicial system in, 124b
labor laws in, 83
legal capacity in, 61, 61b, 62, 63, 64
marital property rights in, 87n12
mode of life test in, 114
precedent in, 103–4
prenuptial contracts in, 66b
religious law in, 54
statutory law in, 97
women in legal profession in, 124b


Burkina Faso
customary law in, 107
nondiscrimination provisions in, 117n3
religious law in, 54


Burundi
default property regimes in, 68
land rights in, 80
legal capacity in, 62
marital property rights in, 73, 74b
statutory law in, 97


business environment
economic rights and, 21–23, 24–27b
legal framework for women in, 23–30


C
Cameroon


customary law in, 105, 110
hybrid legal system in, 86n5
legal capacity in, 62
legal systems in, 36n9
marital property rights in, 46, 73
nondiscrimination provisions in, 117n3
religious law in, 111


Cape Verde
gender equality provisions lacking in, 47
head-of-household statutes in, 48


legal capacity in, 63, 64
case law. See also specifi c cases


on constitutionality of statutes, 93–95
on customary law, 105–10
on impact litigation, 96
on international law and conventions,


92–93
on precedent, 99–105
on religious law, 110–11
on statutory law, 96–99


Chad
religious law in, 55b
statutory law in, 96


Chanda, Mwaba, 109
Chapeyama v. Matende (Zimbabwe,


2000), 104
Chibanda, Manfred, 109
Chopra, Tanja, 132n3
civil law systems


economic rights in, 27
hybrid systems, 36n9, 86n5
international law and, 29–30, 46, 46f
judges’ role in, 36n10
legal capacity and, 8, 63
prenuptial contracts in, 66b
religious law and, 58
standing to challenge constitutionality


of statutes, 48, 49f, 50
civil marriages, 87n20
civil rights, 35n1
civil society, 142, 149
common law systems


default property regimes in, 70
economic rights in, 27
hybrid systems, 36n9, 86n5
international law and, 29–30, 46, 46f
precedent and, 101
prenuptial contracts in, 66b
standing to challenge constitutionality


of statutes, 48, 49f, 50
communal property rights, 22, 29
community of property regimes


as default, 11, 65, 87n21
division of property on divorce,


73–74, 76–77f
inheritance rights, 76, 79–80f, 79f




INDEX 197


Comoros
customary law in, 108
default property regimes in, 68
dowry regimes in, 72b
matrilocal communities in, 108
religious law in, 55b


Congo. See Democratic Republic of
Congo; Republic of Congo


consensual unions, 75
constitutions


customary law in, 52–53, 53–54f
equal pay for equal work provisions,


47, 49f
equal right to work, 47
exemptions from nondiscrimination


provisions, 41
family law in, 19–20
gender provisions in, 46–50, 48–49f
legal pluralism and, 93–94, 100b
nondiscrimination provisions in, 3–8,


46–47
property rights in, 47, 48, 49f
recommendations, 135–36, 136b
religious law in, 53–56, 56f
as source of law, 2, 39, 40


contracts
enforcement of, 21–22, 23
legal capacity and, 62


Convention on the Elimination of All
Forms of Discrimination against
Women (CEDAW)


discrimination defi ned in, 20b
domestication of, 92–93
provisions of, 43b
ratifi cation of, 42, 43–44, 45f, 86n8
as source of law, 40


Convention on the Rights of the Child,
88n28


Côte d’Ivoire
customary law in, 105
legal capacity in, 62
marital property rights in, 88n25
nondiscrimination provisions in, 117n3


Cotula, Lorenzo, 132n3
Court Administration Reform Project


(Ethiopia), 142


courts. See also judicial systems
customary law, 51b
legal pluralism and, 94–95
small claims, 146


credit, access to
land rights and, 11–12, 30–31
legal capacity and, 62


criminal law, 36n8
Customary Code of Dahomey of 1931


(Benin), 105
Customary Courts Ordinance


(Cameroon), 105
customary law


access to, 15–16, 130–31
advantages of, 107–9
autonomy of, 128
corruption and favoritism in, 128
defi ned, 50b
disadvantages of, 109–10
dispute resolution via, 23
family law and, 20
inheritance rights, 11, 79f
institutional shortcomings, 127–30,


128–29b
land rights and, 81, 81b, 88n30
legal pluralism and, 14–15, 105–10, 106t
marital property rights and, 68, 87n21
nondiscrimination provisions and,


10f, 26, 86n4
recognition of, 50–51b, 50–60, 53–54f,


57f, 59–60f
recommendations, 16, 139–40, 143b
religious law’s infl uence on, 51b
as source of law, 2, 39, 40, 52, 56, 57f
in statutory law, 56–60, 57f, 60f
statutory limits on, 57, 97


customary marriages, 11, 75, 88n24, 101


D
Das, Maitreya, 132n3
Deeds Registry Act (Swaziland), 48, 95
Deininger, Klaus, 5b, 32
Democratic Republic of Congo


dowry regimes in, 72b
legal capacity in, 62
marital property rights in, 73




198 INDEX


de Soto, Hernando, 22
discrimination, defi ned, 20b. See also


nondiscrimination provisions
Discrimination (Employment and


Occupation) Convention (ILO),
42, 44, 45f, 47, 48, 138


dispute resolution, 23, 145b
divorce


customary law and, 108
division of property, 32b, 73–76,


74–75b, 76–77f, 104b
legal pluralism and, 92
nonmonetary contribution and,


74–75, 75b, 104b
Divorce Act of 1904 (Uganda), 93
domestication of international law and


conventions, 29–30, 36n12,
86n7, 92–93


Dow, Unity, 100b, 126–27. See also
Attorney General of the Republic
of Botswana v. Unity Dow


dowry regimes, 11, 72b
dualist states, 29–30, 36n12, 46, 46f, 86n7


E
Echaria v. Echaria (Kenya, 2007), 102–103b
economic rights


business environment and, 21–23
economic opportunities and, 30–35
family law and, 31–35, 32b
land rights, 30–31, 31b
legal protection of, 22–23
property rights, 24–27b
self-employed employers and, 33–35b


employment law. See labor laws
England, marital property rights in, 96,


100, 117n8
Enterprising Women: Expanding


Economic Opportunities in
Sub-Saharan Africa (Hallward-
Driemeier), 8b, 35b


entrepreneurs
business environment and, 23
economic rights and, 6–8b, 33–35b
property rights and, 24–27b


Ephraim v. Pastory (Tanzania, 2001),
93, 96


equal pay for equal work provisions,
35n2, 47, 48, 49f, 83, 84


Equal Remuneration Convention (ILO),
42, 44, 45f, 47, 48, 138


Eshon, Rita Charlotte, 123b
Essa v. Essa (Kenya, 1996), 102b
Estates and Succession Amendment Act


of 2005 (Namibia), 98b
Ethiopia


access to legal system in, 125
CEDAW reservations by, 86n8
Court Administration Reform


Project, 142
family law reforms in, 5b, 31
hybrid legal system in, 86n5
international law and conventions in, 44
land rights in, 5b, 137, 138b
legal capacity in, 62, 137
legal pluralism in, 112
nondiscrimination provisions in, 117n3
prenuptial contracts in, 66b
property rights in, 48
religious law in, 54, 111


Ethiopian Women Lawyers Association, 112
ethnicity-based legislation, 97, 98b


F
Family Code 1993 (Burundi), 74b
family law. See also divorce; inheritance


rights; marriage
business environment and, 26–27
in constitutions, 19–20
economic rights and, 31–35, 32b
gender diff erences in, 19
recommendations, 16, 151b


Federal Interpretation Act (Nigeria), 96–97
Federation of Women Lawyers, 145b, 146
Field, Erica, 5b
forum shopping, 114, 118n21
free trade agreements, 151b
French Civil Code of 1958, 96, 97
fundamental unit in legal framework, 29


G
Gabon


customary law in, 107
legal capacity in, 62




INDEX 199


marital property rights in, 73
nondiscrimination provisions in, 117n3
separate property as default regime


in, 69
statutory law in, 97


Gajigo, Ousman, 5b
Th e Gambia


customary law exempt from
nondiscrimination provisions
in, 52


religious law in, 54, 111
repugnancy test provisions in, 113
separate property regime in, 70


Gbaron v. Yaccoumba v. Anemena Suzanne
v. Mbombo Asang v. Nadam
Emile (Cameroon, 1997), 111


gender equality provisions, 46–48, 93
Gender Law Library, 41
Ghana


customary law in, 57, 108, 139, 140, 144
gender equality provisions lacking


in, 47
inheritance rights in, 12, 78
justice system shortcomings in,


122b, 123b
land rights in, 30, 31b, 80, 81
marriage registration in, 144, 152n2
property rights in, 4b
repugnancy test provisions in, 113
separate property regime in, 70
statutory law in, 99
women in legal profession in, 124b


Ghatak, Maitreesh, 36n14
Global Governance Indicators, 87n17
Goldstein, Markus, 4b
Goyal, Aparajita, 5b, 32
Gray, Jeff rey S., 5b, 32b
Guinea


dowry regimes in, 72b
legal capacity in, 62


Guinea-Bissau
customary law in, 107
marital property rights in, 73
property rights in, 48


Gumede v. President of South Africa
(South Africa, 2008), 95, 105


H
Haldar, Antara, 35n3
Hallward-Driemeier, Mary, 5b
Hasan II (king of Morocco), 151b
head-of-household laws


gender equality provisions and, 48
households as fundamental legal unit,


29
legal capacity and, 8, 10f, 60–64, 61b,


63–64f
Henrysson, Elin, 50b
Hindu personal laws, 53
Hindu Succession Act (India), 5b, 32
Hlophe, John, 113


I
ILO. See International Labour


Organization
impact litigation, 96, 149, 150
India, family law reforms in, 5b, 32
informal networks, 22, 35n3
inheritance rights


awareness of legal rights, 147–48
division of marital property on, 76–80,


79–80f
gender diff erences in, 11, 27
land rights and, 81
legal pluralism and, 92
reforms in, 32
Sharia law and, 55b
statutory law and, 97
statutory user rights, 77


International Association of Women
Judges, 143b


International Finance Corporation, 41
International Labour Organization (ILO)


Discrimination (Employment and
Occupation) Convention, 42,
44, 45f, 47, 48, 138


Equal Remuneration Convention, 42,
44, 45f, 47, 48, 138


Maternity Protection Convention, 43,
44, 45f


Night Work Convention, 43, 44, 45f
as source of law, 12, 40




200 INDEX


international law and conventions. See also
specifi c conventions and treaties


domestication of, 29–30, 36n12, 86n7,
92–93


ratifi cation of, 9f, 42–46, 43–44b, 45–46f
as source of law, 2, 39, 40
women’s economic rights in, 22


intestate succession, 78. See also
inheritance rights


Intestate Succession Act of 1987 (South
Africa), 94


Intestate Succession Act of 1989
(Zambia), 140


Islamic law. See Sharia law
Iyayi v. Aninatoou (Cameroon, 2000), 111


J
Jaiz v. Ali (Kenya, 2009), 102b
JEP (Jurisprudence of Equality


Program), 143b
Joireman, Sandra F., 50b
judges


female, 123
legal pluralism and, 92
shortage of, 122


Judicature Act (Zambia), 57
judicial oversight, 59
judicial systems, 122–27. See also


courts; judges
access to, 15–16, 121, 125–27, 126f
male domination of, 123
recommendations, 141, 144–46
shortcomings of, 122–24, 122–24b, 124t


Judicial Training Institute (Tanzania), 143b
Jurisprudence of Equality Program


(JEP), 143b


K
Kaffi v. Kaffi (Nigeria, 1986), 101
Kane, Minneh, 132n3
Karanja v. Karanja (Kenya, 1976), 102b
Kenya


access to legal system in, 141
accountability in, 142
constitutional nondiscrimination


provisions in, 136b


customary law in, 51b, 106, 107, 109
domestication of international law in,


92–93
international law and conventions


in, 36n12
judicial system backlog in, 122
Jurisprudence of Equality Program


in, 143b
land rights in, 5b, 137
legal aid in, 144, 146
nondiscrimination provisions in, 136b
precedent in, 102–3b
prenuptial contracts in, 66b, 147
property rights in, 48
religious law in, 54, 55b, 110, 131
repugnancy test provisions in, 112
statutory law in, 96


Kenya Women Judges Association, 143b
Kimani v. Njoroge (Kenya, 1995), 103b
Kivuitu v. Kivuitu (Kenya, 1991), 102b
KwaZulu Act (South Africa), 95


L
labor laws


business environment and, 23
gender diff erences in, 27, 35n2, 41
nondiscrimination provisions, 12–14,


82–85, 83–85f
recommendations, 16, 138–39
statutory law and, 99


land law and land rights
awareness of legal rights, 147
economic opportunities impacted by,


30–31, 31b
gender diff erences in, 19, 27, 41
nondiscrimination provisions, 11–12,


13f, 80–82, 81b, 82f
recommendations, 16, 137, 138b


Law of Marriage Act of 1971 (Tanzania),
101, 117n11


legal aid schemes, 125, 144, 145b, 146
legal capacity


gender diff erences in, 40
legitimacy of, 36n6
marriage’s impact on, 3, 26, 41




INDEX 201


nondiscrimination provisions and, 1,
8–11, 60–64, 61b, 63f


recommendations, 137
Legal Capacity of Married Persons Act 9


of 2006 (Lesotho), 61b
legal framework


for business environment, 23–30
domestication of international


conventions, 29–30
fundamental unit in, 29
hybrid systems, 36n9, 86n5
for inheritance rights, 76
nature of, 27–30
precedent in, 27–28
recommendations, 135–40
standing in, 28–29
Women–LEED–Africa database, 39–42


legal pluralism, 14–15, 91–120
challenges of, 111–14
constitutions, 93–94, 100b
courts, power of, 94–95
customary law, 105–10, 106t
domestication of international law, 92–93
forum shopping, 114
gender diff erences in systems, 19
impact litigation and, 96
mode of life test, 113–14
precedent and, 99–105, 102b
religious law, 110–11
repugnancy test and, 112–13
statutory law, 96–99, 98b, 104b


legal services, 144–46, 145b
Lesotho


community of property as default
regime in, 69


customary law exempt from
nondiscrimination provisions
in, 52


legal capacity in, 61b, 63
women in legal profession in, 124b


Liberia
customary law in, 106, 106t
gender equality provisions lacking in, 47
labor laws in, 83
property rights in, 48
women in legal profession in, 124b


Library of Congress (U.S.), 41
licensing of businesses, 23
Local Government Act (Uganda), 128b


M
Mabuza v. Mbatha (South Africa, 2003), 113
Madagascar


customary law in, 105–6
default property regimes in, 68
international law and conventions in, 44
marital property rights in, 73
prenuptial contracts in, 66b


Malawi
customary law in, 108, 118n19
impact litigation in, 96
land rights in, 81
lawyer shortage in, 125
matrilocal communities in, 108
nondiscrimination provisions in, 117n3
precedent in, 100
property rights in, 12, 48
religious law in, 54
repugnancy test provisions in, 112
separate property regime in, 70
statutory law in, 99


Malaysia, women Sharia court judges in,
132n4, 150


Mali
family law reforms in, 150
legal capacity in, 62
marital property rights in, 73
religious law in, 55b


Malinki v. Malinki (Malawi, 1994), 117n9
Maputo Protocol on the Rights of


Women in Africa, 93
marital domicile, 11, 62, 63, 74b
marital property rights


business environment impacted by, 21
in constitutions, 47, 48, 49f
customary law and, 108
economic opportunities impacted by,


1, 4–5b, 24–27b
formal mechanisms for enforcing, 21–22
gender diff erences in, 40
marriage’s impact on, 26, 41
statutory user rights, 77




202 INDEX


marriage, 64–80
bride payments, 72b
customary, 11, 75, 88n24, 101
default property regimes in, 11, 12f,


65–71, 66b, 67t, 69–70f, 71b, 146
divorce. See divorce
dowries, 72b
inheritance rights, 76–80, 79–80f. See


also inheritance rights
legal capacity impacted by, 3, 26, 41
minimum age provisions, 5b, 31, 32
polygamous. See polygamous marriages
postnuptial contracts, 66b
prenuptial contracts, 66b, 147
property rights impacted by, 26, 41
recommendations, 144
statutory, 11, 75
women’s property rights in, 71–73


Marriage Code 1983 (Côte d’Ivoire),
88n25


Married Person Equality Act 1996 Act 1
of 1996 (Namibia), 61b


Married Women’s Property Act of 1882
(England), 96, 100


Maru, Vivek, 132n3
maternity leave, 83
Maternity Protection Convention (ILO),


43, 44, 45f
matrilineal communities, 71b, 118n17
matrilocal communities, 71b, 88n27, 108
Matrimonial Causes Act of 1941


(England), 96
Matrimonial Causes Act of 1970


(Nigeria), 101
Matrimonial Causes Act of 2007


(Zambia), 101, 118n12
Matrimonial Property Act 88 of 1984


(South Africa), 61b
Mauritania


CEDAW reservations by, 86n8
dowry regimes in, 72b
legal capacity in, 62
prenuptial contracts in, 66b
religious law in, 55b


Mauritius
CEDAW reservations by, 86n8


gender equality provisions lacking
in, 47


hybrid legal system in, 86n5
labor laws in, 83
legal capacity in, 63
religious law in, 55b
statutory law in, 99
women in legal profession in, 124b


Mazunyane v. Chalera (Malawi, 2004),
118n19


Mbenge v. Mbenge (Botswana, 1996),
103–4


mediation, 145b, 146, 148
mode of life test, 113–14
Modogashe Declaration (Kenya), 109
Mogorosi v. Mogorosi (Botswana, 2008), 103
Mohamed v. Sefu (Tanzania, 1983), 104b
Mohammed (king of Morocco), 151b
Moisakomo v. Moisakamo (Botswana,


1980), 107
Mojekwu v. Mojekwu (Nigeria, 1997),


113, 113b
Molokomme, Athaliah, 124b
Molomo v. Molomo (Botswana, 1979), 114
monist states, 29–30, 36n12, 46, 46f,


86n7, 136b
Morocco, family law reforms in, 151b
Mozambique


customary law in, 140
land rights in, 81
property rights in, 12


Mtegha v. Mtegha (Malawi, 1994), 117n9
Muslims. See also Sharia law


family law and, 54
polygamous marriages and, 69
prenuptial contracts and, 147, 152n3


Musyoka (Kenya, 2005), 92
Mwanamwalye v. Mwanamwalye


(Zambia, 2005), 109


N
Nagarajan, Hari, 5b, 32
Namibia


community of property as default
regime in, 69


inheritance rights in, 147




INDEX 203


legal capacity in, 61b, 64, 137
marital property rights in, 87n20
prenuptial contracts in, 66b
statutory law in, 97, 98b
women in legal profession in, 124b


Natal Code (South Africa), 95
National Council of Law Reporting


(NCLR, Kenya), 141
Native Administration Proclamation Act


15 of 1928 (Namibia), 87n20
Nderitu v. Kariuki (Kenya, 1997), 103b
Ndossi v. Ndossi (Tanzania, 2001), 94
Nhlapo, Th andabantu, 50b
Niger


CEDAW reservations by, 86n8
forum shopping in, 114
legal capacity in, 62
marital property rights in, 73
statutory law in, 97


Nigeria
customary law in, 107, 110
inheritance rights in, 147
nondiscrimination provisions in,


117n3
precedent in, 101
prenuptial contracts in, 66b
repugnancy test provisions in, 112, 113b
separate property regime in, 70
statutory law in, 96–97, 98


Night Work Convention (ILO), 43, 44, 45f
nondiscrimination provisions


in constitutions, 3–8, 46–47
customary law and, 26, 86n4
exemptions from, 20, 41, 52
legal pluralism and, 93
recommendations, 136
religious law and, 86n4
statutory law and, 26


nonmonetary contribution, 74–75, 75b,
100, 103–4b, 137


Nyangulu v. Nyangulu (Malawi, 2010), 100


O
Obusez v. Obusez (Nigeria, 2001), 98
Oloka-Onyango, J., 132n3
Otieno v. Ougo (Kenya, 1987), 136b


P
Pande, Rohini, 36n14
paralegals, 145b
participation of women in the legal system,


123–24
Personal Status of Persons Code 2001


(Mauritania), 66b
Peru, land rights in, 31
pluralism. See legal pluralism
political rights, 35n1
polygamous marriages


community of property regimes and, 65
constitutional nondiscrimination


provisions and, 93
inheritance rights, 77–78, 79–80f
separate property regime and, 69


poverty and property rights, 4b, 30
Poya v. Poya (Malawi, 1979), 108
precedent, 27–28, 99–105, 102b
pregnant women, labor laws for, 83, 138
prenuptial contracts, 147
Promotion of Equality and Prevention of


Unfair Discrimination Act of
2000 (South Africa), 99


property rights. See land law and land
rights; marital property rights


Protocol on Gender and Development
(SADC), 124b


Protocol to the African Charter on Human
and Peoples’ Rights on the Rights
of Women in Africa


domestication of, 92–93
provisions of, 44b
ratifi cation of, 42, 44b, 45f
as source of law, 40


R
race-based legislation, 97, 98b
Recognition Act of 2000 (South Africa), 87n21
Recognition of Customary Marriages Act


of 1998 (South Africa), 140
Registered Land Act of 1963 (Kenya), 81b
Registered Trustees of the Women and Law


in Southern Africa Malawi v.
Attorney General (Malawi,
2009), 96




204 INDEX


registration of businesses, 23
regulatory framework. See statutory law
religious law. See also Sharia law


access to, 131
in constitutions, 53–56, 56f
customary law infl uenced by, 51b
family law and, 20, 150
inheritance rights and, 11, 76
legal pluralism and, 14–15, 110–11
nondiscrimination provisions and,


86n4, 110
recognition of, 50–60, 55b, 56f, 58–60f
rule of law and, 58
as source of law, 3, 39–40
in statutory law, 56–60, 58f, 60f
statutory limits on, 57


Republic of Congo
legal capacity in, 62
marital property rights in, 73


repugnancy test, 57, 59, 87n16, 112–13
Rono v. Rono (Kenya, 2005), 92–93
Roy, Sanchari, 5b, 32
rule of law


legal capacity and, 63–64
measurement of, 87n17
religious law and, 58


Rwanda
access to legal system in, 142
hybrid legal system in, 86n5
legal capacity in, 62, 64
legal systems in, 36n9
marital property rights in, 73
nondiscrimination provisions in, 117n3


S
Saidy v. Saide, Shrunsole, and Saidy (Th e


Gambia, 1974), 111, 113
Sawe v. Sawe (Tanzania, 1992), 104b
Seboko, Mosadi, 129b
self-employed employers. See also


entrepreneurs
economic rights and, 6–8b, 33–35b
property rights and, 24–27b


Senegal
dowry regimes in, 72b
marital property rights in, 73


prenuptial contracts in, 66b
property rights in, 48
religious law in, 54, 55b
separate property as default regime


in, 69
separate property regimes


as default, 11, 65–68
division of property on divorce, 74,


76–77f
inheritance rights, 77, 78, 79–80f, 79f
nonmonetary contributions in, 137


Sex Discrimination Act of 2002
(Mauritius), 99


Seychelles
labor laws in, 83
legal capacity in, 64


Sharia law
constitutions infl uences by, 53–54
forum shopping and, 114
property rights of women, 55b
as source of religious law, 87n14
women judges and, 132n4


Shilubana v. Nwamitwa (South Africa,
2008), 87n15, 108, 127


Sierra Leone
customary law in, 52, 105, 107, 127, 130
lawyer shortage in, 125
legal aid services in, 145b
nondiscrimination provisions in,


117n3
separate property regime in, 70


small claims courts, 146
social capital, 35n3
Somalia, religious law in, 55b
South Africa


community of property as default
regime in, 69


constitutional power of courts in, 94,
117n5


customary law in, 51b, 87n15, 105,
107, 108, 127, 140


default property regimes in, 87n21
legal aid services in, 145b
legal capacity in, 61b, 64
precedent in, 101
prenuptial contracts in, 66b




INDEX 205


religious law in, 54
repugnancy test provisions in, 113
statutory law in, 99
women in legal profession in, 124b


Southern African Development
Community (SADC), 124b


Southern African Legal Information
Institute, 141


standing to challenge constitutionality,
28–29, 47, 48–49, 87n11


statutory law
customary law in, 56–60, 57f, 60f, 97
enforcement of, 140–41
ethnicity-based legislation, 97
land rights and, 88n30
legal pluralism and, 14–15, 96–99,


98b, 104b
nondiscrimination provisions and, 26
precedent and, 28
race-based legislation, 97
recommendations, 136–39, 148–50
religious law in, 56–60, 58f, 60f
as source of law, 2, 39


statutory marriages, 11, 75
statutory user rights to property, 77
Stevenson, Betsey, 5b, 32b
Stiglitz, Joseph, 35n3
succession laws. See inheritance rights
Sudan


constitutional nondiscrimination
provisions in, 94


labor laws in, 83, 139
legal capacity in, 61, 63
religious law in, 55b


Swaziland
constitutional power of courts in,


94, 95
default property regimes in, 68
land rights in, 81
legal capacity in, 46, 60, 61, 63
marital property rights in, 73
nondiscrimination provisions in,


117n3, 117n6
prenuptial contracts in, 66b
property rights in, 12, 48
statutory law in, 46


T
Tah, Christiana, 124b
Tanzania


access to legal system in, 142
constitutional nondiscrimination


provisions in, 93–94
customary law in, 51b, 105, 110
impact litigation in, 96
judicial system in, 132n2
Jurisprudence of Equality Program


in, 143b
land rights in, 137
precedent in, 101, 117n11
religious law in, 131
repugnancy test provisions in, 112, 113
separate property regime in, 70
women in legal profession in, 124b


taxation, 23
Tejan-Cole, Abdul, 132n3
tenure rights, 30, 88n30, 118n16
titling programs, 30–31, 81b. See also


land law and land rights
Togo


customary law in, 51b
legal capacity in, 62


transparency, 17, 140, 142


U
Udry, Christopher, 4b, 36n14
Uganda


access to legal system in, 142
awareness of legal rights in, 145b
constitutional nondiscrimination


provisions in, 93
customary law in, 128b
impact litigation in, 96
Jurisprudence of Equality Program


in, 143b
land rights in, 80
legal pluralism in, 112
religious law in, 54, 55b
repugnancy test provisions in, 112
separate property regime in, 70


Uganda Association of Women Lawyers
v. Attorney General (Uganda,
2002), 93, 96




206 INDEX


United Kingdom, marital property rights
in, 96, 100, 117n8


United Nations Children’s Fund
(UNICEF), 147


Unity Dow case. See Attorney General
of the Republic of Botswana v.
Unity Dow


universal community of property
regimes, 69


Universal Declaration of Human Rights, 94
universal partnership doctrine, 101–2
U.S. Agency for International


Development, 151b


V
Vieyra, Rosine, 93, 151b
Village Land Act of 1999 (Tanzania), 132n2
village tribunals, 105


W
Wachokire (Kenya, 2002), 92
welfare law, 36n8
White v. White (UK, 2001), 117n8
Wolfers, Justin, 5b, 32b
Women, Business, and the Law (Gender


Law Library), 41
Women and Law and Development in


Africa, 151b
Women in Business Program, 41
Women’s Law Association for Southern


Africa, 96
Women’s Legal and Economic


Empowerment Database for
Africa (Women–LEED–Africa),
2–14, 39–90


constitutions, 46–50, 48–49f, 52–56,
53–54f, 56f


customary law, 50–51b, 50–60, 53–54f,
57f, 59–60f


fi ndings from, 41–42


gender provisions in constitutions,
46–50, 48–49f


international law and conventions,
42–46, 43–44b, 45–46f


labor laws, 82–85, 83–85f
land law and land rights, 80–82, 81b, 82f
legal capacity, 60–64, 61b, 63f
marital property rights, 64–80,


66b, 67t, 69–70f, 71–72b, 73t,
74–75b, 76–77f, 79–80f


religious law, 50–60, 55b, 56f, 58–60f
scope, 20
statutory law, 56–60, 57–58f, 60f
structure of, 40–41


Women’s Legal Rights Initiatives
(USAID), 151b


Z
Zambia


customary land in, 88n31
customary law exempt from


nondiscrimination provisions
in, 52, 57


customary law in, 107, 108, 109, 140
inheritance rights in, 12, 147
labor laws in, 83
land rights in, 80, 81
matrilocal communities in, 108
precedent in, 101, 118n12
property rights in, 12
separate property regime in, 70


Zimbabwe
customary law exempt from


nondiscrimination provisions
in, 52–53


customary law in, 51b, 57
precedent in, 103–4
property rights in, 48
women in legal profession in, 124b






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and Economic Opportunities in Africa
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“ Empowering Women: Legal Rights and Economic Opportunities in Africa is an
essential and comprehensive new resource for all practitioners and policy makers
interested in gender and development in the Africa region. It provides a clear
guide as to which laws matter at the country level for women, and offers a
bridge for lawyers and development specialists to understand the linkages
between the law and its impact on everyday economic opportunities.”


— Meaza Ashenafi , Founder, Ethiopian Women Lawyers Association and
Africa Prize Laureate


“ Finally! A book that opens up an engaging and accessible conversation between
lawyers and economists. This excellent volume and its supporting database will
be invaluable to practitioners from all disciplines and students of law and
development. Highly recommended.”


— Fareda Banda, Professor in the Laws of Africa, School of Oriental and African Studies,
University of London


“ Women’s rights activists in Africa and internationally will hail this landmark
publication that compellingly links economic development to the overall status of
women in society. Signifi cantly, it reviews laws and practices related to not only
business and employment, but marriage, divorce, inheritance, and property rights.
It also looks critically at the multiple legal systems that guarantee or impede such
rights. I hope this publication will propel governments to engage in thorough
review and reform of laws and legal systems.”


—Yasmeen Hassan, Global Director, Equality Now


“ This book powerfully demonstrates that egalitarian reform of laws shaping
women’s rights to property, land, and their ability to work is a necessary condition
for economic development and improvements in social well being. For policy
makers, activists, and citizens concerned about obstacles to growth in the
region, this book is essential reading.”


—Mala Htun, Associate Professor of Political Science, University of New Mexico


“ This book provides compelling evidence that the areas of law it examines need
to be addressed—in terms of substance, enforcement, awareness, and access—
if economic opportunities for women in Sub-Saharan Africa are to continue
to expand.”


—Ngozi Okonjo-Iweala, Coordinating Minister of Economy and Minister of Finance,
Federal Republic of Nigeria


ISBN 978-0-8213-9533-2


SKU 19533




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