Human Development 22125 126 s0NAL 4> January 1999 Findings reports on ongoing operational, economic, and sector work carried out by the World Bank and its member govemments in the Africa Region. It is published periodically WO R L D BA N K by the Knowledge and Leaming Center on behalf of the Region. The views expressed in Findings are those of the author/s and should not be attributed to the World Bank Group. Gender and Law: AN''N AEastern Africa Speaks Gender issues, particularly with cussed the legal constraints to respect to women's status and gender-sensitive development in rights, have for a considerable pe- their respective countries. It was ) riod, been in the forefront of a unique Conference in that, con- donors' dialogue on social issues sistent with the Program's basic with Africa. While African coun- approach, the country practition- tries have fully acknowledged the ers and policymakers set and ar- seriousness of the issues and the ticulated the agenda. This illus- urgent need for action, the dia- trated a definite shift in the para- _ w logue has been largely donor-dri- digm for discussion of gender is- ven and issues and priorities been sues - the donors were the listen- donor-set. Recognizing the need ers and the African stakeholders for a new approach in this impor- the speakers. = tant area for Africa's progress, the During the Conference, each Bank, in collaboration with the country delegation voiced its pri- Economic Commission for Africa, orities for change. The issues in- initiated a Gender and Law Pro- cluded land-related challenges, gram, in October 1997, at a Con- family law, violence against ference held in Addis Ababa, women, employment and labor, Ethiopia. The Program shifts re- and decentralized governance w sponsibility for identification and frameworks. Land and the divi- implementation of themes, issues sion of household property are and priorities to in-country stake- prime areas where gender-based holders rather than with donors. disparities marginalize and disen- franchise women of Eastern Issues and Approaches Africa. In the effort to improve women's social and economic life, The delegates to the Conference, two main themes emerged: the consisting of ministers, judges, impact of customary laws and academics, lawyers working for practices and the need for effec- Non-Governmental Organizations tive implementation. The dele- and private sector lawyers, repre- gates emphasized the need to ini- - sented six African countries, tiate action for change at grass- namely, Ethiopia, Eritrea, Kenya, roots, institutional and policy- Tanzania, Uganda and Zimbabwe. making levels. They recognized N ] The delegates presented papers the daunting nature of the tasks on topics selected through a par- ahead, especially given that laws ticipatory in-country process and would be seeking to change be- exchanged views, debated and dis- havior and attitudes. Overview tution, while reiterating the con- to maintenance from her partner cept of gender equality and non- or his family. Legal reform is being undertaken discrimination on the basis of sex, There is a need to re-examine in all six countries represented legally reopened the issue of the the impact of the formalization of at the Conference. However, the applicability of customary law. It customary laws relating to land position of the majority of provided that if parties to a dis- The customary right of the male women continues to be defined pute of personal status agree to head of the household or the clan by customary rules deeply em- the applicability of customary law, leader being the allocator of land bedded in country-specific his- then this law would apply. Legisla- has been mistakenly misunder- torical, economic and social ex- tion is yet to clarify whether such stood to be a right of ownership. perience. agreement includes gender dis- This has resulted in a reduction of criminatory customary laws. access to land for women in the Ethiopia The 1995 Constitution pro- customary arena. The women of Ethiopia enjoy vides that all land belongs to the The ome of thipiaenjoy state. The former principle of rights that are greater than those land be torme tille of of women in any of the other land belonging to the tiller has Tanzania countries. The Civil Code of the been abrogated, creating a win- In Tanzania, codification has sig- Empire of Ethiopia (the Code) in dow through which female heads nificantly modified customary 1960 called for uniform legal pro- of households can now have practices. Customary laws are, visions which would govern all greater access to land. In the nevertheless, held to apply to the personal matters and invalidated case of married women, however, African population unless the all customary laws in the areas they continue to access land contrary is proved. Inconsisten- regulated by the Code. As a result, through their husbands. cies in statutory interventions the Ethiopian woman has a de leave women in Tanzania vulnera- jure right to an equal portion of ble when a marriage terminates - common household property. Kenya women are not provided with full Upon divorce, she is entitled to In Kenya, the Constitution per- access to household property. The her own property and to half of the mits the application of custom- Law of Marriage Act (1971), while, common property. In matters of ary law to personal matters and for example, prohibiting the alien- inheritance, she is not to be dis- to the devolution of property. The ation of the matrimonial home criminated against. Constitution contains no provi- without the consent of the other At another level, however, the sion for gender as a basis for spouse, paradoxically provides Code codifies certain customary non-discrimination and as a re- that the wife loses this right if the practices: it designates the hus- sult, even gender-biased prac- marriage terminates either by di- band as the head of the family and tices are held as valid and consti- vorce or death. Tanzanian courts gives him the authority to admin- tutional. Women's access to eco- have, in order to provide the wife ister household property. The nomic resources in Kenya are with some access to matrimonial husband is given the right to con- consequently largely defined by assets upon divorce, used the rea- trol and manage common proper- customary laws. Inheritance is soning that marriage is an eco- ty and to make all decisions re- usually along the male lineage - nomic venture. garding such property. While the hence, women do not inherit Similar to the situation facing Code requires that the husband family property. Kenyan women, Tanzanian act judiciously and not alienate An additional complication in women do not inherit where there property without the consent of the Kenyan situation is the grow- are male heirs. Women's access to his wife, strong traditional and ing number of cohabiting couples household property and to land cultural beliefs discourage women who found families outside of under inheritance laws are there- from enforcing this requirement. both the formal or customary fore severely constrained, under- Over the last 38 years, ethnic legal regimes. When such unions lining the urgency of the need to groups have for the most part con- terminate, the woman in usually revisit gender in the current on- tinued to apply their own norms left with no access to any house- going revision of land tenure in and customs. In 1995, the Consti- hold property nor to entitlement this country. out new approaches and test Uganda Zmbabwe cases (best practices) for change. In Uganda, implementation of Customary laws govern the bulk Support to the participating laws in a decentralized govern- of personal relationships in Zim- countries covers both technical mental framework is a key issue. babwe. Most marriages are not and financial dimensions, with While decentralized arrange- registered but are, rather, gov- there being Bank-assisted activi- ments could provide an excellent erned by customary rules. A mar- ties already in place for Uganda framework for enhancing gover- ried woman is assumed to work and Zimbabwe. nance issues and facilitate effec- for her husband and all property Expected key outputs of the tive implementation of laws to acquired in the marriage, apart Program include reconciliation of protect women, capacity at the from household property such as statutory and customary law and decentralized levels is essential kitchen vessels, belong to the international conventions, harmo- if such systems are to be effec- husband. Upon termination of a nization of legislation on land, in- tive. Also, decentralization pro- marriage, division of property is creased institutional capacity and vides opportunities to reexamine dependent upon whether or not gender awareness of local stake- dispute settlement methods and the marriage has been registered holders, harmonization of mar- to bring such processes closer to under the Matrimonial Causes riage and inheritance rights and the disputants. Act, and most are not. gender-relevant Islamic rules in Uganda has also introduced an The enactment of the Mainte- East Africa, reduction of violence affirmative action program, re- nance Amendment Act (No. 6/97) against women, and institution of serving 30 percent of the seats in has been an important step in re- mechanisms to enhance the im- local councils for women. While quiring a husband to maintain plementation of gender sensitive this has brought a number of his ex-wife and her minor chil- laws and regulations. women into the political main- dren in cases of divorce, and it Energized by the lead which the stream, experience demostrates supersedes customary law. The African teams are taking in mov- shatream, eperienc demonstrates Administration of Estates Act ing the Program forward, the Bank thatschmprogramsy astone to has also introduced a measure of is keen to facilitate the continued ity beuaccompaniedfo by stro capac t security for women by providing growth and development of this it buidn Seforts e iaret that the surviving spouse and important endeavor. children of the deceased have the of women and attitudes also af- fect the participation of women at rightyt inheri the deeae' loca leels,andtheUganan el-property. Customary law prevent- - local levels, and the Ugandan del- ed a woman from inheriting her For more information on this egation stressed the need to ad- deceased husband's property. subject, please contact either dress these issues in a decentral- Gita Gopal, Rm. J9-063, World ized framework. There is a need Undertaking Reform Bank, 1818 H Street NW, Wash- to gender-sensitize even women; ington D.C. 20433. Tel. no.: (202) otherwise women councilors The Gender and Law Program is 473-6835, e-mail address: may not themselves be effective facilitating further exploration of ggopal@worldbank.org or Eliza- in translating their numerical the causes of women's insubordi- beth Adu, Rm. MC5-447 at the presence into an effective lobby nation and marginalization in same address, tel. no.: (202) that articulates and addresses these countries. It is also en- 4581758, e-mail address: gender concerns and needs. abling the African teams to carry eadu@worldbank.org Findings Findings would also be of interest to: Name _ _ Institution Address ___ Letters, comments, and requests for publications that are not available at the World Bank Bookstore, should be addressed to: Editor, Findings Knowledge and Learning Center Africa Region, World Bank 1818 H St., N.W., Room J5-171 Washington, D.C. 20433 E-mail: pmohan@worldbank.org