69772 Empowering Women Legal Rights and Economic Opportunities in Africa By Mary Hallward-Driemeier and Tazeen Hasan Overview The World Bank Washington, DC Empowering Women Legal Rights and Economic Opportunities in Africa By Mary Hallward-Driemeier and Tazeen Hasan Overview The World Bank Washington, DC © 2011 The International Bank for Reconstruction and Development / The World Bank 1818 H Street NW Washington DC 20433 Telephone: 202-473-1000 Internet: www.worldbank.org All rights reserved 1 2 3 4 14 13 12 11 This document summarizes the book Empowering Women: Legal Rights and Economic Opportunities in Africa. It is a product of the staff of the International Bank for Reconstruction and Development / The World Bank. The findings, interpretations, and conclusions expressed in this volume do not necessarily reflect the views of the Executive Directors of The World Bank or the governments they represent. The World Bank does not guarantee the accuracy of the data included in this work. 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Cover photo: World Bank Contents Overview Chapter 1 Law, Gender, and the Business Environment Purpose and scope of study Importance of economic rights in business incentives Extent of legal protection for women’s economic rights Main areas of the law for women in business Nature of the legal system Impact of rights on economic opportunities Chapter 2 Women’s Legal Rights: The De Jure Situation Women – LEED – Africa Database Score sheet 1 Ratification of international treaties and conventions Score sheet 2 Gender provisions in constitutions Score sheet 3 Recognition of customary and religious law Score sheet 4 Legal capacity Score sheet 5 Marriage and property Score sheet 6 Land law and land rights Score sheet 7 Labor laws Chapter 3 Women’s Legal Rights: Multiple Systems, Multiple Problems Multiplicity of legal systems in Sub-Saharan Africa The role and interplay of the various sources of law Customary law: An important legal player Challenges of multiple legal systems and inconsistent laws iv EmpowEring womEn – LEgaL rights and Economic opportunitiEs in africa Chapter 4 Women’s Legal Rights: The De Facto Situation Formal judicial systems in practice Customary systems in practice Chapter 5 The Way Forward Strengthening legal substance Securing existing benefits Expanding women’s awareness Proceeding with conviction—and respect Appendix References List of Cases Foreword Expanding opportunities for women is of 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; they ensure that people can reap the benefits of their efforts. Policy makers shape property rights through laws and regulations, and the legal system sup- ports their enforcement. Yet no prior study has 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 there are different impacts for women and men. In part this is because they are looking at issues of how to register property or enforce contracts, presuming that everyone can own property or enter a contract. A major contribution of this book is to demonstrate that in many Sub-Saharan countries this is not true for women and men equally. Areas of family law, inheri- tance law, and land law are not generally included in studies of business regula- tions. But it is precisely these areas of law that define legal capacity and the ability to own and control assets—and where 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. The book’s recommendations for policy makers focus not only on specific substantive changes to the law, but also on ensuring rights are enforced and on making the system of justice more accessible. The recommendations also target women, showing how a few key decisions—such as registering a marriage, choosing a marital property regime, titling assets and businesses, and writing wills—can have dramatic impacts on their rights to property. vi EmpowEring womEn – LEgaL rights and Economic opportunitiEs in africa The book also illustrates the benefits of bringing law and economics together. For lawyers it provides evidence on how laws and legal reforms can improve eco- nomic outcomes. Links to specific statutes and case law facilitate comparisons of de jure gender gaps in rights. And beyond the laws, the de facto function- ing of the legal system can hamper woman access to justice. For economists it demonstrates that a broader set of laws beyond business regulations have direct gender impacts. The rich set of programs and approaches to expand access to the legal system discussed here invite further research into their effectiveness on expanding women’s access to credit, investment and entrepreneurship. This book provides compelling evidence that the areas of law examined here 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 Former Managing Director of the World Bank Acknowledgements The principal authors of this book are Mary Hallward-Driemeier and Tazeen Hasan. The book was written with the important contributions and assistance of colleagues in the World Bank. In addition to contributions to chapters 1, 2 and 4, Mark Blackden provided invaluable assistance with his introductions to key local partners, his gift in moderating workshops and his push to enlarge the scope of the work. Tazeen Hasan, Jane Kamangu, and Emilia Lobti collected and analyzed the formal legal economic rights of women in the region, assembling the Legal and Economic Empowerment Database (Women – LEED – Africa Data- base). They also brought together and distilled the lessons from case law that, together with the database, forms the basis of the analysis in this book. Insightful comments and suggestions were provided by participants of the workshops in Addis Ababa, Cape Town, Dakar, Nairobi, and Washington DC, with participants from Cameroon, the Democratic Republic of Congo, Ethiopia, Gambia, Ghana, Kenya, Malawi, Mali, Nigeria, Rwanda, Senegal, South Africa, Sudan, Tanzania, and Uganda. Particular thanks are given to Mekonnen Firew Ayano, Reena Badiani, Elena Bardasi, Lisa Bhansali, Chris- tina Biebesheimer, Rea Abada Chiongson, Aline Coudouel, Susan Deller Ross, Asli Demirguc-Kunt, Deval Desai, Shanta Devarajan, Markus Goldstein, Louise Fox, Anne Goldstein, Sarah Iqbal, Sandra Joireman, Maureen Lewis, Waleed Malik, Andrew Mason, Nicholas Menzies, Ferenc Molnar, Ana Maria Munoz Boudet, Pierella Paci, Rita Ramalho, Ana Revenga, Bob Rijkers, Caroline Sage, Carolina Sanchez-Paramo, Sudhir Shetty, Sevi Simavi and Vijay Tata for their comments and suggestions. The text benefitted from the editorial services of Bruce Ross-Larson. Financial support from the Dutch BNPP Trust Fund, Gender Action Plan, and the Africa Chief Economist Regional Studies Program is gratefully acknowl- edged, as is the additional support from the World Bank’s Finance and Private Sector Development Chief Economist Office, Finance and Private Sector Devel- opment Africa Department and Research Department. The study was carried out under the overall guidance of Marilou Uy, Director for Finance and Private Sector Development in Africa, and Shanta Devarajan, Chief Economist for the Africa Region. viii EmpowEring womEn – LEgaL rights and Economic opportunitiEs in africa There is a companion volume Enterprising Women: Expanding Opportunities in Africa that further develops a four part agenda in expanding women’s economic empower- ment. In addition to addressing the legal rights discussed here, it calls for closing gen- der gaps in education and training, access to finance and voice. Overview Chapter 1 Law, Gender, and the Business Environment Can you reap the rewards of your investments of time and resources? Are you restricted in your legal ability to make decisions that affect your economic activ- ities? These are central questions for people in business everywhere. To answer them one has to address property rights and the ability of entrepreneurs to make economic decisions in their own name. This book looks at the property rights and legal capacity of women, how and why they differ from those of men, and how these differences affect women’s economic and entrepreneurial oppor- tunities in Sub-Saharan Africa. It looks at the formal property and legal rights of women and men, examining constitutions, international agreements, statutes, and case law. And it presents evidence of the practical challenges to exercis- ing these rights and makes recommendations to strengthen women’s economic rights—on the books and in practice. Business regulations stipulate the procedures for registering property or businesses, enforcing contracts, or safeguarding investor or creditor rights, and so would seem the natural starting point for a legal analysis. Such regu- lations rarely have gender-differentiated provisions. But apparently gender- blind regulations all presuppose that the parties can enter into contracts, move freely, can access forums of economic exchange, and can own property or control assets in their own name. This is not always true for men and women equally. A principal finding of this study is that other areas of the law, rarely addressed in analysis of the business environment, play a determining role in framing people’s economic rights. These areas include family laws govern- ing marriage, divorce, and inheritance, as well as laws governing land rights and labor markets. These laws, rather than business regulations, determine whether women and men equally can make economic decisions in their own name, or whether they face restrictions in their ability to enter into contracts or to own, administer, transfer, or inherit assets and property. It is precisely in these areas that gender differences, including outright discrimination, are most apparent. 2 EmpowEring womEn – LEgaL rights and Economic opportunitiEs in africa Strengthening women’s economic and legal rights has not only intrinsic value but also instrumental value, as seen in the effects of reforms on women’s economic opportunities in investment, agricultural productivity, and labor force participation (see Box 1). Other factors also influence women’s oppor- tunities—skills development; access to infrastructure, finance, technology, and markets; and governance and competition. Still, the formal rules reflect what should happen if the legal system is functioning well, and so the incentives and protections the rules provide need to be examined. BOX 1 Research shows the impact of property rights on 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. Much recent literature focuses on microeconomic analyses, generally within a sin- gle country that has changed legal rights, or that grants different rights to different groups. This box highlights examples of such changes to property rights or family law. Strong land rights can promote investment Empirical work suggests that a greater share of resources controlled by women pro- motes agricultural productivity (Saito, Mekonnen, and Spurling 1994; Udry and others 1995; Quisumbing 1996; Besley and Ghatak 2009) and helps reduce poverty (World Bank 2001). Insecure property rights to land have multiple ramifications for agriculture and how rural economic activity is organized. For one, the risk that land will be expro- priated deters investment. Insecure property rights also reduce borrowers’ ability to pledge land as collateral, and thus tightens credit constraints. Ill-defined property rights to land can inhibit land transactions—rentals or sales—losing the potential gains from trade (Aryeetey and Udry 2010). Udry and Goldstein (2008) examine the effect of contested land rights on investment 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 that individual’s security of tenure over those specific plots. Besley (1995), also in Ghana, shows that individuals 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. (continued on next page) ovErviEw 3 BOX 1 (Continued) Many countries have formal titling programs. Some evaluations have shown an asso- ciated increase in agricultural productivity and a (weak) increase in access to credit (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 finance: a profitable 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 tilting has too often been done under a single name, the male head of household. … and increase labor supply Field (2007) evaluates the impact of titling program in the slums of Peru. She finds little impact of a title on decisions to invest in the home or plot of land, but does find an impact on labor supply, particularly for women. The title freed members of the house- hold 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, which gave equal rights to females in inherit- ing property. The new law raised the likelihood of women inheriting land (but did not fully eliminate the gender difference), increased the age at marriage for girls, raised their educational attainment, and increased household investments in daughters. Roy (2008) found that the law increased women’s autonomy. Changes in family law can strengthen women’s economic empowerment As family law determines issues of legal capacity or who controls assets in the family, changes in legislation can affect economic opportunities. Part of the effect may come from shifts in intrahousehold bargaining power, as illustrated by Stevenson and Wolf- ers (2006) and Gray (1998), who looked at the changes in divorce laws in the United States. Box 3.1 cites progress in Ethiopia. Ethiopia changed its family law in 2000, raising the minimum age of marriage for women, removing the ability of the husband to deny permission for the wife to work outside the home and requiring both spouses’ consent in the administration of marital property. This reform, initially rolled out in selected regions and cities, now applies across the country. Using two nationally representative household surveys, one in 2000 just prior to the reform and one five years later, Hallward-Driemeier and Gajigo (2010) find a substantial shift in women’s economic activities. 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 (controlling for time and location effects). Source: Hallward-Driemeier 2011. 4 EmpowEring womEn – LEgaL rights and Economic opportunitiEs in africa Chapter 2 Women’s Legal Rights: The De Jure Situation A new database was created for this study, the Women’s Legal and Economic Empowerment Database for Africa (Women – LEED – Africa). It documents which countries legally allow differential treatment between women and men, and along which dimensions. The database covers all 47 Sub-Saharan countries and the five important sources of law: • International treaties and conventions on women’s rights. They provide legal protections that are binding on their signatories. Their direct application domestically can vary by monist or dualist state system (they are directly applicable in the former, but need to be incorporated into domestic laws in the latter). • Constitutions. They are the highest source of law in a country and lay out the guiding principles for legal rights. The focus is on provisions for nondis- crimination on the basis of sex and, as appropriate, for explicitly promoting gender equality. • Statutes. Family and civil codes, marital property laws, land laws, and labor laws—rather than generic business regulations—determine who has legal capacity, who can own property, and what the restrictions are on equal labor opportunities. • Customary law. Many African countries’ constitutions or statutes (or both) recognize customary law as a separate—often equal—source. Some coun- tries recognize only certain areas of customary law. The interest is in its applicability to legal capacity, property, and inheritance. • Religious law. Many regional countries recognize religious law as a separate— often equal—source. Some recognize it as the primary source of law, others as the applicable source of law for members of a particular religion or for certain issues (or both). Again, the interest is in its applicability to issues of legal capacity, property, and inheritance. The has seven “score sheets� on international agreements and conventions; constitutional nondiscrimination and gender-equality provisions; recognition of customary and religious law; legal capacity; property rights, notably in mar- riage and inheritance; land laws; and labor laws. Constitutional recognition of nondiscrimination The principle of nondiscrimination is recognized in all Sub-Saharan countries, either in constitutions or in the international conventions to which they are signatories (figures 1 and 2). The constitutional recognition of customary law is pervasive—it applies in all common law countries and in almost half the civil law countries. Where ovErviEw 5 FiGuRE 1: COnSTiTuTiOnAL RECOGniTiOn OF nOn-DiSCRiMinATiOn AnD GEnDER EquALiTy 100% 75% 50% 25% 0% Low-income Middle-Income Low-income Middle-Income Non-Discrimination Specific Provision for Gender Equality No Yes source: hallward-driemeier and others n.d. FiGuRE 2: inTERnATiOnAL COnvEnTiOnS AnD nOn-DiSCRiMinATiOn 100% Share of Countries in SSA 75% 50% 25% 0% Ratification Ratification ILO ILO ILO ILO of CEDAW of Africa Convention Convention 111 Convention Convention Women’s 100 (Non-discrimination 171 181 (Maternity Rights Protocol (Equal pay) in employment) (Night work) protections) No Yes source: hallward-driemeier and others n.d. customary law is not recognized in constitutions, this recognition is implicitly provided in statutes, particularly those for marriage or inheritance. What varies across countries is the extent to which constraints are placed on customary law in upholding the principle of nondiscrimination (figure 3). Legal capacity Restrictions on women’s legal capacity do not differ much by income, but they are found largely in civil law countries (the two common law countries for which it is applicable are Sudan and Swaziland), where various laws stipulating the man as “head of household� apply (figure 4). While one indicator measures the countries that have a “head of household� provision, its implications can mis- lead—for two similar but opposite reasons. First, some countries without such 6 EmpowEring womEn – LEgaL rights and Economic opportunitiEs in africa FiGuRE 3: COnSTiTuTiOnAL RECOGniTiOn OF CuSTOMARy LAW 100% 75% 50% 25% 0% Low-Income Middle-Income Not Recognize Recognize Customary Law— Recognize Customary Law— Customary Law and EXEMPT it from non-discriminate and limit its ability to discriminate based on gender based on gender source: hallward-driemeier and others n.d. a provision still have statutes that provide for the same powers of husbands over their wives. Second, some countries deem the man head of household more as a social distinction, and have explicit provisions that husbands do not have power over the economic decisions of their wives. In short, a “head of household� pro- vision is not an infallible indicator of who makes the economic decisions. Husbands 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 his ability to deny his wife permission to pursue a job or profession. The need to get his signature to open a bank account is less com- mon, at least in laws governing marriage (though many countries allow banks to require this as part of their business practice). Property regime for marriage The type of property regime in marriage determines the ability of both spouses to own property during marriage and after its dissolution through death or divorce. These property rights in turn determine spouses’ access to and control of assets and other productive resources that can be used as collateral for loans or for other business purposes. Statutory, customary, and religious marriages are subject to various property regimes. The most common are community of property (including universal community of property), separate ownership of property, dowry, and customary law. The default marital regime that applies is regulated by the relevant family statute or code, which in turn depends on the type of marriage contract that the parties enter. inheritance regime Inheritance remains one of the main ways for women to acquire and control property (figure 5) and one of the main areas where women encounter property ovErviEw 7 FiGuRE 4: THE RiGHT TO CHOOSE THE MATRiMOniAL HOME iS THE MAin WAy HuSBAnDS COnTROL THEiR WiFE’S ASSETS 100% 75% 50% 25% 0% Low--Income Middle-Income Low-Income Middle-Income Low-Income Middle-Income Low-Income Middle-Income Man as head Choice of matrimonial Need husband’s Husband can oppose of household home by husband permission wife’s exercise of to open an account trade or profession Yes Not found No source: hallward-driemeier and others n.d. disputes. The legal framework for succession laws in Sub-Saharan Africa falls under constitutions as well as family, customary, and religious laws. Judicial pre- cedence also plays a large role. All these factors affect whether women, married FiGuRE 5: inHERiTAnCE iS OnE OF THE MAin WAyS WOMEn CAn ACquiRE AnD COnTROL PROPERTy Number of Countries 25 20 15 10 5 0 Community Separate Customary Community Separate Customary Community Separate Customary Recognition of wife's portion Recognition of non-monetary Statutory recognition of of joint property intestate contributions to matrimonial customary law in property property for inheritance inheritance (e.g. in Succession Acts) No Not found Yes source: hallward-driemeier and others n.d. 8 EmpowEring womEn – LEgaL rights and Economic opportunitiEs in africa and unmarried, can own and control property and thus their ability to use such assets in their business. Land Land is central to getting finance, especially in Africa’s collateral-based bank- ing systems, and is a key resource for enterprise development. Land issues are also where many of the problems associated with multiple legal systems—with customary law and practices for land ownership and access rights, and deep- rooted gender biases—come to the fore. Some land laws explicitly give rights to men, some are gender-neutral, and others recognize the rights of women to own land (figure 6). Intestate succession laws in several countries, as in Ghana and Zambia, exclude customary or lineage land from property that can be inherited by the widow on the death of her husband. Instead, the land follows customary rules of inheritance, usually to a male heir. Customary land comprises 72 percent of all land in Malawi, 80 percent in Mozambique, 60 percent in Swaziland, and 81 per- cent in Zambia,1 so this rule is a major impediment to women’s land rights. FiGuRE 6: GEnDER DiMEnSiOnS OF LAnD RiGHTS 100% 75% 50% 25% 0% Low-Income Middle-Income Low-Income Middle-Income Low-Income Middle-Income Low-Income Middle-Income Protection of land Statutory recognition Entitlement to Customary land rights for women of customary law coownership of is exempt from applying to land property based succession laws ownerhship on marriage and/or distribution No Not found Yes source: hallward-driemeier and others n.d. 1Land Tenure Systems and Sustainable development in Southern Africa, 2003, ECA/SA/ EGM.Land/2003/2 ovErviEw 9 Labor Legal safeguards for women’s labor rights in Sub-Saharan Africa are in the ILO Conventions that states sign and in the constitutions and labor laws of countries. Because men’s and women’s economic activities outside agricul- ture are mainly as self-employed entrepreneurs, employers, or wage earners, their options are affected by laws, regulations, and practices governing labor and employment. Thus while labor laws directly affect employees, they can also affect entrepreneurship by raising or lowering the availability and attrac- tiveness of wage employment. Constitutions in 30 countries in the region go beyond a general clause on nondiscrimination to provide equal rights to work or equal pay (or both). Effectively implementing the principle of nondiscrimi- nation is critical in enforcing labor rights for women to ensure equal pay for equal work. Restrictions on women’s labor hours, or on the nature of the work they may undertake, still apply in many countries. Women’s ability to participate fully in the labor force, unlike men’s, is affected in many countries by laws and regula- tions that restrict the kind of work they may undertake, or that limit the hours they can work. Some restrictions apply to all women; some only to pregnant women, ostensibly aimed to protect them. Fifteen countries restrict the nature of the work any woman may engage in, and 20 more apply such restrictions only to pregnant women (figure 7). Twenty-three countries apply restrictions to all women on the hours they may work, and a further 12 apply them only to pregnant women. These restrictions, combined with other limitations resulting from head-of-household provisions, are a severe obstacle to women becoming wage earners. They may be one of the factors contributing to the fact that, if agriculture is excluded, women are predominantly self-employed in informal and small enterprises. Overall, four key messages emerge from an examination of women’s legal status in the database: FiGuRE 7: LABOR RESTRiCTiOnS On HOuRS AnD nATuRE OF WORk 100% 75% 50% 25% 0% Low-Income Middle-Income Low-Income Middle-Income Restrictions on nature of work Restrictions on hours All Women Only Pregnant Women No Restrictions Not Found source: hallward-driemeier and others n.d. 10 EmpowEring womEn – LEgaL rights and Economic opportunitiEs in africa • All countries in the region recognize the principle of nondiscrimination in the constitution. All but two have also signed international conventions against discriminating women. But legal exceptions are widespread in the constitutions themselves, and in statutes governing marital property, inheri- tance, 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. • The 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 probably be needed. • Gender gaps in economic rights is associated with women’s ability to grow their business and to shift from self-employment to being an employer. The share of employers who are female is higher where women’s economic rights are stronger (see box 2). BOX 2 Cross-country patterns highlight role of economic rights in expanding opportunities The companion volume Enterpris- Box FiGuRE 1: WOMEn ARE ing Women: Expanding Opportuni- DiSPROPORTiOnATELy in SELF-EMPLOyMEnT ties in Africa (Hallward-Driemeier 2011) explores in more detail the Where women work ways that these gaps in economic non agricultural labor force 80 rights affect the opportunities fac- Percent of women in ing women entrepreneurs. One of 60 the distinctions in entrepreneur- 40 ship is between those who are 20 self-employed and those who are employers. Opportunities can exist 0 within both categories, but far 6 7 8 9 10 more self-employed individuals are GDP per capita (log) entrepreneurs by necessity. Increas- Self- Employers Wage ing the share of employers among employed earners entrepreneurs is one important source: household and Labor force surveys, Low and way to expand opportunities. middle income countries. (continues to next page) ovErviEw 11 BOX 2 (Continued) The overall gender pattern between Box FiGuRE 2: SHARE OF EMPLOyERS the two types of entrepreneurship WHO ARE FEMALE iS LOW – AnD COnSTAnT is striking. While women represent ACROSS inCOME about 40 percent of the nonagri- Female share within Employment Category cultural labor force in Sub-Saharan Africa, they account for 50 percent 50 of the self-employed, but only just 40 more than 25 percent of employ- Percent ers. Factors that can help bridge this 30 gap are thus important in helping women entrepreneurs in particular. 20 In cross-country patterns, the 6 7 8 9 10 share of self-employed individuals GDP per capita (log) in the nonagricultural labor force Self- Employers Wage is inversely related to income: it is employed earners very high in low-income countries, and declines as country income source: household and Labor force surveys, Low and middle income countries. rises. The same does not hold for employers: the share, which is small, changes little as country Box FiGuRE 3: THE GAP BETWEEn THE income rises. Instead, the factor SHARE OF MEn AnD SHARE OF WOMEn associated with the share of female WHO ARE EMPLOyERS iS 30 PERCEnT LOWER employers is the extent of gender WHEn THERE ARE FEWER GEnDER GAPS in gaps in economic rights. More ECOnOMiC RiGHTS (PERCEnT) women are employers where they have stronger rights to access and 125 versus female employers Percentage gap of male control assets, and where they can 100 enter contracts in their own name 75 (box figure 3). 50 An important policy implication 25 from these results is that simply 0 Low-Income Middle-Income relying on income will not be suf- Larger gaps Small or no gaps in ficient to close gender gaps among in women's women'seconomic female employers. Indeed, as fig- economic rights rights ures 1–7 demonstrate, gaps in economic rights are as prevalent source: hallward-driemeier, 2011. in middle income countries in Sub- Saharan Africa as in low-income countries. More steps to address legal reforms are needed to enable more female entrepreneurs to move from self-employment to the ranks of employers. Source: Hallward-Driemeier, 2011. 12 EmpowEring womEn – LEgaL rights and Economic opportunitiEs in africa Chapter 3 Women’s Legal Rights: Multiple Systems, Multiple Problems What is on the books determines de jure rights, but so too does case law. The coexistence of customary, statutory, and religious laws in all Sub-Saharan coun- tries gives rise to two main challenges. First, the very fact of multiple systems of law and sources of jurisprudence provides opportunity for discrimination and bias—and raises questions as to which system prevails in which circumstances. Second, many core areas relevant to business—including property rights—are the subject of conflicting, and sometimes contradictory, provisions in legal sys- tems. Case law illustrates these challenges and their implications for the security of women’s economic rights, particularly where the principle of nondiscrimina- tion does not prevail. Chapter 4 De Facto Practice: Constraints in Accessing Justice Gender gaps in de jure economic rights are based in what is on the books and in case law. But de facto constraints in accessing justice can be an important source of gender gaps in economic rights. This is true not only for the judicial system, but also where customary law is officially recognized within the formal legal system. Consequently, the de jure indicators in the database may not always accurately reflect rights in practice, and so it is instructive to examine the gaps between de jure rights and de facto practice. Practical constraints, including awareness, distance, cost, language, and bias, can shape the ability to exercise statutory economic rights, with important gen- der differences. When courts are located only in urban centers, conduct business only in European languages, and charge significant fees, many women do not see them as a viable option. Little of the region’s population engages with the formal judicial system, or even has much knowledge of the legal protections it affords. Particularly in areas with lower incomes and education, that are more rural, or with strong customary traditions (often in combination), people rarely see 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 or how property is divided. Unless customary law is recognized within the formal system, this implies working outside the protec- tions afforded 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 accessible to them, their experience in customary institutions can differ greatly from men’s. Most of the customary courts are adjudicated by men and tend to favor men in their decision making. Women were historically excluded from adjudicating on matters of customary law, so they cannot influence its evolution. Women may be unable to voice their grievances directly, and it is up to the male head of the family whether the grievance is even brought to the attention of elders. ovErviEw 13 The challenge is thus to balance the best elements of formal customary law and informal traditional systems with expanded access to statutory protections where they offer greater rights to women. Chapter 5 The Way Forward The legal frameworks in Sub-Saharan Africa are complicated, and multiple legal systems and de facto practice can enhance—or undermine—a woman’s access to and control over property. Ultimately, a woman’s ability to engage in economic activity is shaped by what property rights she enjoys and what legal capacity she possesses. Discriminatory family, marital-property, and inheritance laws, alongside formal legal restrictions on mobility, employment outside the house, and administration of personal assets, are barriers that the state all too often condones. The customary and social norms from which these laws derive are a still deeper challenge to reform. The study makes recommendations for reform on four levels. improving the substance of laws To unify and strengthen all women’s rights, all sources of law should be subject to the principle of nondiscrimination. If protections are important enough to be included as a guiding constitutional principle, they should apply equally to all. They should cover all sources of law, including customary and religious law, and they should specifically cover, rather than exclude, the important family and financial decisions in everyone’s lives. Four areas of law stand out as ripe for reform: • Family law, to strengthen the legal recognition of nonmonetary contri- butions to marriage in division of property on divorce or death—and to remove, in family codes and other statutes, head-of-household and related provisions that diminish women’s legal capacity and economic autonomy. • Land law, notably to facilitate and encourage mandatory joint land titling. • Labor and employment law, primarily to address existing restrictions—on women, including married or pregnant women—that limit the type of work women may engage in or the hours they may work. • Customary law, to strengthen the effective application of the nondiscrimi- nation principle, especially for marital property and land—and to build on the strengths and accessibility of customary dispute-resolution mechanisms, while offsetting areas of gender bias in application of customary law. Securing existing benefits Five principal sets of measures are needed to strengthen the administration of law and access to justice: strengthening enforcement of laws; expanding access to laws and legal decisions; improving transparency and accountability of the 14 EmpowEring womEn – LEgaL rights and Economic opportunitiEs in africa justice system; making the system more friendly to women; and tackling practi- cal 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 their economic rights Women need to be aware of their legal protections and be empowered to exercise them. Practical steps that women and others can take focus on a few key deci- sions: encouraging registration of marriages such customary marriages, encour- aging the use of antenuptial agreements and the writing of wills, choosing the marital property regime that best safeguards their access to property, registering marital property jointly, and registering their businesses in their own name. Proceeding with conviction—and respect In the reform process, reformers must address political economy issues, espe- cially in amending family codes and laws, consider the sociocultural context when drafting new laws that are appropriate to the country’s situation, and thoroughly analyze the national legal framework. Beyond changing the laws, education, acceptance, and enforcement are also needed. Experience shows that changes in social norms do not happen instantly, but, without targeted reform, they may take even longer. Building on the strengths of existing systems facili- tates the process of reform. Most assessments of the business climate for women overlook the areas of law that this study examines. Policy makers need to focus more closely on clos- ing these legal—and other—gaps so as to expand the economic opportunities for women in Sub-Saharan Africa. 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: Theory and Evidence 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 Certification 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. 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. Harvard University, Cambridge, MA. Goldstein, Markus, and Christopher Udry. 2008. “The Profits of Power: Land Rights and Agricultural Investment in Ghana.� Journal of Political Economy 116 (6): 981–1022. Gray, Jeffrey S. 1998. “Divorce-Law Changes, Household Bargaining, and Married Wom- en’s Labor Supply.� American Economic Review 88 (3): 628–42. Hallward-Driemeier, Mary. 2011. Enterprising Women: Expanding Opportunities in Africa. Washington DC: World Bank. Hallward-Driemeier, Mary, and Ousman Gajigo. 2010. “Strengthening Economic Rights and Women’s Occupational Choice: The Impact of Reforming Ethiopia’s Family Law.� 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). Pande, Rohini, and Christopher Udry. 2005. “Institutions and Development: A View from Below.� Economic Growth Center Discussion Paper 928. Yale University, New Haven, CT. Roy, Sanchari. 2008. “Female Empowerment through Inheritance Rights: Evidence from India.� 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. Can you reap the rewards of your investments of time and resources? Are you restricted in your legal ability to make decisions that affect your economic activities? These are central questions for people in business everywhere. To answer them one has to address property rights and the ability of entre- preneurs to make economic decisions in their own name. This book looks at the property rights and legal capacity of women, how and why they differ from those of men, and how these differences affect women’s economic and entrepreneurial opportunities in Sub-Saharan Africa. It looks at the formal property and legal rights of women and men, examining constitutions, inter- national agreements, statutes, and case law. And it presents evidence of the practical challenges to exercising these rights and makes recommendations to strengthen women’s economic rights—on the books and in practice. A companion volume, Enterprising Women: Expanding Women’s economic empowerment is critical for development. Expanding opportunities for women is of intrinsic value. It is also instrumental in fos- Opportunities for Women in Africa, which examines in tering development; helping realize the potential of all people is needed to ensure growth, productivity, and a vibrant society. Enterprising Women: Expanding Opportunities in Africa analyzes new data from 42 countries in Sub-Saharan Africa to provide practical recommendations on how to help more women move into higher return activities. Improving the prospects of existing businesses is part of the solution. And more detail ways to improve women’s ability to move into addressing constraints in the investment climate that burden informal and smaller enterprises will disproportionately benefit women. But the larger goal is to enable more women to shift the nature of what they do. This book provides examples from countries across the region on how to achieve success. The data show the gender patterns across types of entrepre- higher return activities. Drawing on the findings of this neurial activities—but they are not uniform. Variations in these patterns and analyses of reforms show how shifting conditions make a difference. More indeed can be done, and this book provides a roadmapdof how to do it. Companion Volume: Empowering Women: Legal Rights and Expanding Opportunities in Africa (by Mary Hallward-Driemeier and Tazeen Hasan) docu- report, it finds a significant role for improving women’s ments and analyzes how women’s formal economic rights differ from men’s in 42 countries in Sub-Saharan Africa, and discuss their implications for accessing justice and in pursuing economic opportunities. Enterprising Women Expanding Opportunities in Africa legal and economic rights. By Mary Hallward-Driemeier The World Bank Washington, DC