Ruling out Gender Equality? The Post-Cold War rule of law agenda in Sub-Saharan Africa

Abstract

The post-cold war rule of law agenda in sub-Saharan Africa has not translated into reforms that enhance gender equality. The focus of reform efforts has reflected a post-cold war emphasis on creating a suitable legal and institutional environment for the market. In this climate any gains for gender equality have been limited and hard won. The main shortcomings are: gains in constitutional rights have had limited practical reach; official discussion of gender inequality in property remains disconnected from relevant broader processes such as restructuring of financial institutions; the reform agenda has not engaged with informal institutions, yet these have significant impact on gender relations; there has been relative under-investment in non-commercial judicial reform; and changes to labour regulation have been effected through sub-legislative and non-transparent processes and have not been interrogated for their failure to benefit workers in general, and in sectors dominated by women in particular.

Notes

1 T Carothers, ‘Rule of law revival’, Foreign Affairs, 77 (2), pp 95 – 107 uses the term ‘revival’ because there has not been this level of interest in understanding the role of law in economic development, or this level of activity in law-related reform by development agencies, since the 1960s and 1970s ‘law and development’ movement.

2 The specific country examples used in this paper are drawn primarily from the East African region, with references to Ghana, Malawi, Nigeria, Zimbabwe and South Africa, and reference to general trends in the francophone region.

3 I Shihata, Complementary Reform: Essays on Legal, Judicial, and other Institutional Reforms supported by the World Bank, The Hague: Kluwer Law International, 1997; World Bank, Sub-Saharan Africa: From Crisis to Sustainable Growth—A Long-Term Perspective Study, Washington, DC: World Bank, 1989; and World Bank, Governance: The World Bank's Experience, Washington, DC: World Bank, 1994.

4 J Faundez, ‘Legal reform in developing and transition countries: making haste slowly’, Law, Social Justice and Global Development, 2000, electronic journal, Warwick University School of Law, at http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2000_1/faundez/, accessed 28 June 2006; K Pistor, ‘The standardization of law and its effect on developing economies’, American Journal of Comparative Law, 50, 2002, p 101; Shihata, Complementary Reform, p 22; and usaid, ‘Program Highlights’, 2004, at http://www.usaid.gov/policy/budget/cbj2004/highlights.html, accessed 28 June 2006.

5 L-H Piron, ‘Donor assistance to justice sector reform in Africa: living up to the new agenda?’, Justice Initiatives, Open Society Justice Initiative, February 2005, at http://www.afrimap.org/english/images/report/file427a275e61740.pdf, accessed 30 June 2006.

6 See http://www.worldbank.org/annualreport/2004/lending.html, accessed 28 June 2006. Note, however, that when funding activities are categorised by sectors, law-related activities are reflected in the broader sector of ‘law, justice and public administration’, which pushes the percentage to 25%. This is because the figure includes all central government administrative costs for all projects in the relevant period.

7 See http://www.usaid.gov/our_work/democracy_and_governance/technical_areas/rule_of_law, accessed 28 June 2006.

8 See http://www.usaid.gov/policy/budget/cbj2004/highlights.html, accessed 28 June 2006.

9 See http://www.grc-dfid.org.uk/grc/docs/TSP.pdf, accessed 28 June 2006.

10 Information on dfid's programmes and projects in safety, security and access to justice is available at a restricted-access website: http://www.grc-dfid.org.uk/grc/keycaps/ssaj.html.

11 Nordic Consulting Group (ncg), Strategic Plan for the Uganda Judiciary: 2002/3 – 2007/8, Kampala, Uganda: ncg, 2002.

12 R Islam, ‘Institutional reform and the judiciary: which way forward?’, Policy Research Working Paper, 3134, Washington, DC: World Bank, 2003; and World Bank, Annual Report, Washington, DC: World Bank, 2004, at http://www.worldbank.org/annualreport/2004/legal_systems.html, accessed 28 June 2006.

13 I Shihata, Complementary Reform, p 90.

14 Ibid, pp 75 – 83; and World Bank, Annual Report.

15 See World Bank Group, Projects and Operations, 2005, at http://web.worldbank.org/external/projects/main?pagePK=217672&piPK=95916&theSitePK=40941&menuPK=223661&category=majortheme&majortheme = 3, accessed 28 June 2006. No African country had a project funded under ‘access to law and justice’. See also T Carothers, Aiding Democracy Abroad: The Learning Curve, Washington, DC: Carnegie Endowment for International Peace, 1999, pp 161 – 162; and S Golub, ‘Beyond rule of law orthodoxy: the legal empowerment alternative’, Working Paper, 41, Rule of Law Series, Washington, DC: Carnegie Endowment for International Peace, 2003.

16 T Carothers, Aiding Democracy Abroad, pp 161 – 162.

17 African Development Bank (adb), Achieving the Millennium Development Goals in Africa: Progress, Prospects and Policy Implications, Global Poverty Report, June 2002, at http://lnweb18.worldbank.org/afr/afr.nsf/0/aa2093d2b04ddbd885256be30058f71c/$FILE/mdg-africa.pdf, accessed 28 June 2006.

18 World Bank, Governance, p 27.

19 D Martin & FO Hashi, ‘Law as an institutional barrier to the economic empowerment of women’, Working Paper, 2, Washington, DC: Technical Department, Africa Region, World Bank, 2002; Martin & Hashi, ‘Gender, the evolution of legal institutions and economic development in sub-Saharan Africa’, Working Paper, 3, Washington, DC: Technical Dept, Africa Region, World Bank, 2002; and Martin & Hashi, ‘Women in development: the legal issues in sub-Saharan African today’, Working Paper, 4, Washington, DC: Technical Dept, Africa Region, World Bank, 2002.

20 This is acknowledged with respect to the Eastern African Gender and Law Programme in a foreword by James W Adams (Country Director for Tanzania and Uganda) to G Gopal, ‘Gender-related legal reform and access to economic resources in Eastern Africa’, World Bank Discussion Paper, 405, Washington, DC: World Bank, 1999.

21 Email communication from Therese Nibarere, World Bank, Rwanda Country Office, 23 March 2004. The bank has also supported dialogue in six Latin American countries on the application of international conventions on gender equality (via video conference). See World Bank, Annual Report; World Bank Group, Gender and Law in Francophone sub-Saharan Africa: The Role of the World Bank, Washington, DC: World Bank, 2000, at http://www.worldbank.org/afr/findings/english/find155.htm, accessed 28 June 2006; and World Bank Group, ‘Access of women to legal and judicial services in sub-Saharan Africa’, report of the Workshop of Lomé, 27 – 30 November 2000, 2001, at http://siteresources.worldbank.org/EXTAFRREGTOPGENDER/Resources/AccessWomenLegal_en.pdf, accessed 28 June 2006.

22 Some commentators suggest that this co-existence has been an uneasy one, fraught with contradictions. See, for example, J Gathii, ‘Empowering the weak while protecting the powerful: a critique of good governance proposals’, sjd dissertation, Harvard Law School, 1999.

23 Examples include Benin, Kenya, Lesotho, Niger, Swaziland, Zambia and Zimbabwe.

24 Y Mokgoro, ‘Traditional authority and democracy in the interim South African constitution’, Review of Constitutional Studies, 3 (1), 1996, pp 1 – 28; C Nyamu, ‘How should human rights and development respond to cultural legitimization of gender hierarchy in developing countries?’, Harvard International Law Journal, 41 (2), 2000, pp 381 – 418; and C Nyamu-Musembi, ‘Are local norms and processes fences or pathways? The example of women's property rights in rural Kenya’, in A An-Na'im (ed), Cultural Transformation and Human Rights in Africa, London: Zed Books, 2002, pp 126 – 150.

25 See also the list of wlsa publications at http://www.wlsa.co.zw/publications.htm, accessed 28 June 2006. And see wlsa, In the Shadow of the Law: Women and Justice Delivery in Zimbabwe, Harare: wlsa Trust, 2000; and wlsa, In Search of Justice: Women and the Administration of Justice in Malawi, Blantyre: Dzuka Publishing, 2000.

26 For instance, wlsa's study in Zimbabwe found that, out of 197 magistrates nation-wide in 1999, only 58 (29.4%) were women (based on figures provided by the office of the Chief Magistrate). At that time the Supreme Court had five judges, only one of whom was a woman, and out of 18 High Court judges, only three were female. wlsa, In the Shadow of the Law, p 138.

27 C Nyamu-Musembi, ‘For or against gender equality? Evaluating the post-cold war ‘rule of law’ reforms in sub-Saharan Africa’, unrisd Occasional Paper, 7, August 2005.

28 I Shihata, Complementary Reform, pp 20 – 22, 39 – 44.

29 TS Dahl, Women's Law: An Introduction to Feminist Jurisprudence, Oslo: Norwegian University Press, 1987; A Griffiths, In the Shadow of Marriage: Gender and Justice in an African Community, Chicago, IL: University of Chicago Press, 1997; A Hellum, Women's Human Rights and Legal Pluralism in Africa: Mixed Norms and Identities in Infertility Management in Zimbabwe, Tano Aschehoug: Mond Books, 1999; C Smart, Feminism and the Power of Law, London: Routledge, 1989; and wlsa, In the Shadow of the Law.

30 Nyamu-Musembi, ‘Are local norms and processes fences or pathways?’, p 128.

31 C Nyamu-Musembi, ‘Review of experience in engaging with ‘non-state’ justice systems in East Africa’, study commissioned by dfid Governance Division, 2003, at http://www.ids.ac.uk/ids/law/justicewkshp.html, accessed 28 June 2006.

32 J-J Barya & J Oloka-Onyango, Popular Justice and Resistance Committee Courts in Uganda, Kampala: Center for Basic Research, 1994; C Nyamu-Musembi, ‘Are local norms and processes fences or pathways?’; and Penal Reform International, ‘Access to justice in sub-Saharan Africa: the role of traditional and informal justice systems’, 2000, at www.penalreform.org.

33 C Nyamu-Musembi, ‘Are local norms and processes fences or pathways?’.

34 L Khadiagala, ‘The failure of popular justice in Uganda: local councils and women's property rights’, Development and Change, 32, 2001, p 64.

35 See South African Law Commission Discussion Papers, 74, 76, 82, 93 and 95, at http://wwwserver.law.wits.ac.za/salc/discussn/discussn.html, accessed 2 June 2005.

36 See South African Law Commission, ‘Community dispute resolution structures’, Discussion Paper, 87, 1999, at http://wwwserver.law.wits.ac.za/salc/discussn/discussn.html.

37 ncg, Strategic Plan for the Ugandan Judiciary.

38 Available at www.dfid.gov.uk, accessed 28 June 2006.

39 See http://www.justiceforthepoor.or.id/, accessed 28 June 2006; and World Bank, Annual Report.

40 A Whitehead & D Tsikata, ‘Policy discourses on women's land rights in sub-Saharan Africa: the implications of the re-turn to the customary’, Journal of Agrarian Change, 3 (1), 2003, pp 67 – 112; and N Kanji, L Cotula, T Hilhorst, C Toulmin & W Witten, Research Report 1: Can Land Registration serve Poor and Marginalized Groups? Summary Report, London: iied, 2005.

41 S Lastarria-Cornhiel, ‘Impact of privatization on gender and property rights in Africa’, World Development, 25, 1997, pp 1317 – 1333; R Meinzen-Dick, L Brown, H Sims Feldstein & A Quisumbing, ‘Gender and property rights: overview’, World Development, 25, 1997, pp 1299 – 1302; C Nyamu, ‘How should human rights and development respond to cultural legitimization of gender hierarchy in developing countries?’; and AO Pala, ‘Women's access to land and their role in agriculture and decision-making on the farm: experiences of the Joluo of Kenya’, Journal of East African Research and Development, 13, 1983, pp 69 – 85.

42 World Bank, Sub-Saharan Africa, p 104.

43 TC Pinckney & PK Kimuyu, ‘Land tenure reform in East Africa: good, bad or unimportant?’, Journal of African Economies, 3, 1994, pp 1 – 28; and J-P Platteau, ‘The evolutionary theory of land rights as applied to sub-Saharan Africa: a critical assessment’, Development and Change, 27, 1996, pp 29 – 86.

44 J Bruce & S Migot-Adhola (eds), Searching for Land Tenure Security in Africa, Dubuque, IA: Kendall/Hunt Publishing Company, 1994.

45 However, critics have pointed out that even this celebration of customary tenure's flexibility was self-serving, in that flexibility was valued for the possibility that communal systems had the potential to spontaneously evolve towards individual control and would therefore no longer present obstacles to titling programmes but might in fact complement them. For articles that make this observation, see K Firmin-Sellers & P Sellers, ‘Expected failures and unexpected successes of land titling in Africa’, World Development, 27, 1999, pp 1115 – 1128; and P McAuslan, ‘Making law work: restructuring land relations in Africa’, Development and Change, 29 (3), 1998, pp 525 – 552.

46 K Kasanga, ‘Land administration reforms and social differentiation: a case study of Ghana's Lands Commission’, ids Bulletin, 32 (1), 2001, pp 57 – 64; and LA Wily & D Hammond, Land Security and the Poor in Ghana: Is there a Way Forward?, Land Sector Scoping Study commissioned by dfid-Ghana's Rural Livelihoods Programme, 2001, at http://www.oxfam.org.uk/what_we_do/issues/livelihoods/landrights/downloads/ghanasec.rtf, accessed 28 June 2006.

47 Whitehead & Tsikata, ‘Policy discourses on women's land rights in sub-Saharan Africa’, p 79.

48 H de Soto, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else, New York: Basic Books, 2001; de Soto, ‘The mystery of capital’, Carnegie Council on Ethics and International Affairs, 21st Annual Morgenthau Memorial Lecture on Ethics and Foreign Policy, New York, 8 May 2002.

49 See, for example, The Economist, ‘Breathing life into dead capital: why secure property rights matter’, 17 January 2004, pp 10 – 11.

50 Kenya's experience illustrates this erosion of customary land rights. When disputes have arisen between the title holder and family members claiming rights under customary law, Kenyan courts have often ruled that formal title extinguishes all other interests in the land, except ‘overriding interests’ enumerated in section 30 of the Registered Land Act. Among the interests deemed extinguished are interests based on customary law, such as interests of sons in ancestral land (Esiroyo v Esiroyo, 1973, East Africa Law Reports, 388) and the interests of wives that allow them to live on and use family land by virtue of marriage (Wanjohi & Wanjohi v Official Receiver and Interim Liquidator (Continental Credit Finance Ltd), Civil Application NAI No 140 of 1988, reproduced in The Nairobi Law Monthly, 14, February 1989, p 42).

51 CM Peter, Human Rights in Tanzania: Selected Cases and Materials, Cologne: Koppe, 1997; and D Tsikata, ‘Securing women's interests within land tenure reforms: recent debates in Tanzania’, Journal of Agrarian Change, 3 (1), 2003, pp 149 – 183.

52 The authors of the study, who run the Women's Credit Desk at the Bank of Uganda, have undertaken advocacy work with NGOs, rural women and policy makers aimed both at demystifying the workings of the banking industry and encouraging dialogue towards policies that are more favourable. E Kiiza, W Rwe-Beyanga & A Kamya, ‘Accounting for gender: improving Ugandan credit policies, processes and programs’, in D Tsikata & J Kerr (eds), Demanding Dignity: Women Confronting Economic Reforms in Africa, Ottawa and Penang: The North – South Institute and Third World Network-Africa, 2000, pp 47 – 56.

53 E Kiiza, ‘Accounting for gender’.

54 M Mbilinyi, ‘Struggles over patriarchal structural adjustment in Tanzania’, Focus on Gender, 1 (3), 1993, pp 26 – 29; and M Mbilinyi, ‘The restructuring of agriculture in Tanzania: gender and structural adjustment’, ids Seminar Series, Dar Es Salaam: Institute of Development Studies, 1994.

55 E Gwaunza, T Nzira & V Chitanda, ‘The socio-economic and legal implications of epzs in Zimbabwe: some emerging gender concerns’, in Tsikata & Kerr, Demanding Dignity, pp 145 – 164.

56 Kenya Human Rights Commission (khrc), Manufacture of Poverty: The Untold Story of epz s in Kenya, Nairobi: khrc, 2004, p 21.

57 Ibid, p 21.

58 At the same time, the proposed changes introduce new measures that appear to limit workers' rights. Workers would be required to give seven days notice of a strike, and employers have a right to challenge the legality of the strike before a proposed National Labour Court, opening up the possibility of protracted legal delays that could render strike action void. See L Barasa, ‘Workers' right to strike challenged’, Daily Nation, 30 April 2004, at www.nationmedia.com, accessed 28 June 2006.

59 Gwaunza ‘The socio-economic and legal implications of epzs in Zimbabwe’; and khrc, Manufacture of Poverty.

60 R Lung'aho, ‘The gender issues in domestic labour: focus on Uasin Gishu District, Kenya’, Working Paper, 73, Kampala: Centre for Basic Research, 2001; and A Namara, ‘The invisible workers: paid domestic work in Kampala City, Uganda’, Working Paper, 74, Kampala: Centre for Basic Research, 2001.

61 adb, Achieving the Millennium Development Goals in Africa.

62 K Rittich, ‘Feminism after the state: the rise of the market and the future of women's rights’, in I Merali & V Oosterveld (eds), Giving Meaning to Economic, Social and Cultural Rights, Philadelphia, PA: University of Pennsylvania Press, 2001, p 95; and Y Fall, ‘Promoting sustainable human development rights for women in Africa’, Third World Resurgence, 94, 1998, at http://www.twnside.org.sg/title/africa-cn.htm, accessed 28 June 2006.

63 K Rittich, ‘Feminism after the state’.