As noted in the previous chapter, in many countries, women constitute a large portion of the economically active population engaged in agriculture. However, in many parts of the world, women have little or no access to resources such as land, credit and extension services. Moreover, women tend to remain concentrated in the informal sector of the economy. In plantations, they often provide labour without employment contracts, on a temporary or seasonal basis or as wives or daughters of male farm workers.
Women's rights are affected by a great variety of norms, including international instruments and national legislation. Moreover, women's rights are affected by customary law, which is widely applied in the rural areas of Africa, the Asia-Pacific region and Latin America, especially in those regions inhabited by indigenous communities. Finally, the exercise of women's rights is affected by entrenched cultural attitudes and perceptions, often internalized by women themselves.
The post-Rio decade has witnessed a major change in that there is much greater attention paid to gender, at both international and national levels. Recent international treaties and conferences have stressed the importance of women's rights and gender equality. At the national level, many countries have adopted comprehensive plans of action, and have taken steps to improve women's rights in general legislation (e.g., family and succession laws) and in sectoral laws (on land, agrarian reform, cooperatives, etc.). Courts have also played an important role, developing case law on women's rights concerning inheritance, land and labour.
This chapter reviews some of the main developments concerning women's rights in agriculture since the Rio Conference. While these issues are dealt with separately for reasons of clarity, they are in reality intertwined. For instance, land rights are determined both by land legislation and by family and succession law, and the borderline between these may be blurred in legislation (with land laws addressing women's inheritance rights), case law (with cases involving both types of norms) and customary law. Similarly, access to credit partly depends on land ownership, as land titles can be used as collateral to secure loans. Some important aspects of women's rights are not covered in this chapter, due to their only indirect bearing on agriculture (e.g., reproductive health).
Recent international conferences have adopted soft law declarations and plans of action revealing increased attention in the international community to gender issues. Particularly important are the 1994 Cairo Plan of Action on Population and Development, the 1995 Beijing Platform for Action adopted by the Fourth World Conference on Women and the 1996 World Food Summit Plan of Action. Some provisions of these documents relate directly to environment and agriculture. For instance, the Beijing Platform for Action envisages legislative and administrative reforms to ensure gender equality in access to natural resources, including inheritance rights (para. 61(b)). The World Food Summit Plan of Action also envisages measures to enhance women's access to natural resources (para. 16(b)), and affirms the goal of ensuring gender equality and women's empowerment (objective 1.3).
The main global instrument dealing with women's rights is the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, 1979), which prohibits sex discrimination and provides for affirmative action (arts. 2 and 4). The principle of non-discrimination is stated in a very broad way, applying not only to state-enacted laws and regulations, but also to the behaviour of private individuals. Women's rights under the CEDAW include the right to a legal capacity identical to that of men, including equal rights to conclude contracts and administer property (art. 15); gender equality in relation to marriage and family (art. 16); and non-discrimination in employment and training (arts. 11 and 12). Article 14 specifically protects the rights of rural women, including the right to equal treatment in land and agrarian reform.
A major development in relation to the CEDAW has been the adoption of an Optional Protocol (1999) allowing individuals and groups claiming violations to submit complaints to the Committee on the Elimination of All Forms of Discrimination Against Women. After hearing such complaints, the Committee communicates to the parties its views and recommendations, and states are to give due consideration to these and provide a written response. (Protocol, arts. 1, 2 and 7). Moreover, the Committee may on its own initiative start confidential inquiries on grave or systematic violations, although states may opt out of this procedure (arts. 8-10).
Soft law instruments have also been adopted by United Nations human rights institutions. For instance, Resolution 15 (1998) of the Sub-Commission on the Promotion and Protection of Human Rights states that discrimination against women with respect to acquiring and securing land constitutes a violation of human rights law. The Resolution urges governments to amend or repeal discriminatory laws and policies and to encourage the transformation of discriminatory customs and traditions.
Women's rights are also protected by regional human rights treaties, such as the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950, as amended), the American Convention on Human Rights (1969), the African Charter on Human and Peoples' Rights (1981) and the Arab Charter on Human Rights (adopted in 1994 but not yet in force).
Some Rio and post-Rio international environmental instruments contain provisions specifically addressing gender. The preamble of the Convention on Biological Diversity recognizes women's vital role in the conservation and sustainable use of biodiversity, and affirms the need for their participation in policies concerning these issues. Among Rio soft law instruments, principle 20 of the Rio Declaration states that women have a vital role in environmental management and development, and their full participation is therefore essential to achieve sustainable development. The Non-Legally Binding Authoritative Statement of Principles on Forests calls for women's participation in the planning, development and implementation of national forest policies and in the management, conservation and sustainable development of forests (principles 2(d) and 5(b)). Moreover, Chapter 24 of Agenda 21 is specifically devoted to gender.
An example of a gender-sensitive post-Rio instrument is the 1994 Convention to Combat Desertification, which provides for the facilitation of women's participation in efforts to combat desertification at all levels, and specifically for their effective participation in national action programmes (arts. 5 and 10). Women's participation in national action programmes is also required by article 8 of the Regional Implementation Annex for Africa, an associated instrument to the Convention.
The rights of women agricultural workers are addressed in several conventions adopted by the International Labour Organization (ILO), particularly the Equal Remuneration Convention 100 of 1951, the Maternity Protection (Revised) Convention 103 of 1952, the Discrimination (Employment and Occupation) Convention 111 of 1958 and the Plantations Convention 110 of 1958 with its 1982 Protocol.
A major recent development in this field has been the adoption of the 1998 ILO Declaration on the Fundamental Principles and Rights at Work, which reaffirms some principles and rights to which all ILO member states must adhere by the very fact of their ILO membership, regardless of their ratification of the relevant conventions. The principles include the elimination of discrimination in employment and occupation, which encompasses sex discrimination.
The international developments cited above have had reverberations at national level. Most countries have adopted comprehensive plans of action and established specific institutions to follow up the Beijing Platform for Action. In some cases, discriminatory norms have been repealed under the direct pressure of international instruments. For instance, in Morales de Sierra v. Guatemala, a woman filed a complaint with the Inter-American Commission on Human Rights concerning some provisions of the Guatemalan Civil Code. These empowered the husband to administer family property and allowed married women to undertake an occupation only where consistent with their role as housewives. In 1998, after a positive preliminary decision on the admissibility of the complaint, the Guatemalan Government repealed most of the challenged norms. (Inter-American Commission on Human Rights, Case 11625, Report No. 28/98, 6 March 1998, and Report No. 4/01, 19 January 2001)
In some cases, international law has an even more direct bearing on national legal systems, for example where it provides guidance in the interpretation of domestic law, including law affecting women's legal status. For instance, the 1996 Constitution of South Africa states that international law must be considered when interpreting the human rights recognized in the Constitution, and that interpretations of national legislation consistent with international law must be preferred. In some countries, self-executing treaty provisions, including those on women's rights, are enforceable before courts. Human rights treaties have been relied upon by national courts to strike down discriminatory domestic norms.
Most pre-Rio constitutions prohibit sex discrimination (1988 Constitution of Brazil; 1949 Constitution of India; 1948 Constitution of Italy; 1917 Constitution of Mexico), or state the principle of equality without specifying any ground of discrimination (1959 Constitution of Tunisia). The constitutions of the 1990s tend to place greater emphasis on human rights in general and on women's rights in particular. Most prohibit sex discrimination (1990 Constitution of Namibia; 1992 Constitutions of Ghana, Paraguay and Uzbekistan; 1995 Constitutions of Malawi and Uganda; 1997 Constitutions of Burkina Faso and Thailand). The Constitution of South Africa (1996) prohibits discrimination on the basis of sex, gender, pregnancy and marital status, and lists non-sexism among the fundamental values of the state. On the basis of the constitutional principle of non-discrimination, courts may invalidate norms discriminating against women. Some earlier constitutions have been amended to address gender equality: in Kenya, a 1997 constitutional amendment included sex among the prohibited grounds of discrimination. In some cases, however, the principle of non-discrimination remains qualified by exceptions for family and succession law and for customary law (e.g. Fiji, Ghana and Kenya).
Besides prohibiting sex/gender discrimination, some constitutions contain an affirmative action clause allowing special measures in favour of women (Ghana, Paraguay, Uganda). Similar clauses may be included among principles guiding state policies. Thus, the Constitution of Ghana requires the government to take steps to fully integrate women into the mainstream of the economic development of Ghana. The Namibian Constitution requires legislation ensuring equality of opportunities for women to enable them to participate fully in all spheres of Namibian society.
Some recent constitutions have addressed the issue of discrimination embodied in customary norms. The Constitution of Uganda specifically prohibits laws, cultures, customs or traditions which are against the dignity, welfare or interest of women or which undermine their status. The Constitution of South Africa, although it recognizes the role of customary law and institutions, requires respect for the Constitution and statutory legislation.
Several legal systems envisage limits on the capacity of married women to perform acts with legal effect, including signing contracts and filing legal cases. Some states have norms subjecting a woman's taking up of employment to her household responsibilities or to the husband's authorization (the Civil Code of Indonesia; the Personal Status Act of the Syrian Arab Republic; the Civil Code of some Mexican states, e.g. Oaxaca). Their ability to carry out business transactions may also be limited. For instance, the Civil Code of the Dominican Republic prohibits a married woman from entering into contractual obligations without the authorization of her husband. (Galán, 1998) Under the Commercial Code of Chile, a woman married under certain marital property regimes must obtain her husband's authorization to sign contracts establishing companies.
The last decades have witnessed a trend toward the gradual repeal of these norms. For instance, in Brazil, the original text of the Civil Code of 1916 made married women incapable of performing certain acts without their husband's authorization; Law 4121 (1962) reduced the number of acts requiring the husband's consent; and finally the Constitution of 1988 and the Civil Code of 2002 affirmed the equality of rights and duties of both spouses. In South Africa, the inferior status of women married under customary law envisaged by the Black Administration Act of 1927 was repealed by the Recognition of Customary Marriages Act of 1998. In Tunisia, provisions of the Code of Obligations and Contracts requiring the husband's authorization for married women to sign service contracts were repealed by Law 17 (2000). In Malawi, the 1995 Constitution grants women equal legal capacity to enter into contracts and to acquire and maintain property rights.
In some cases, these changes have been prompted by complaints brought before international institutions (as noted above for Guatemala) or domestic courts. For instance, in Turkey, article 159 of the 1926 Civil Code, requiring the husband's consent for married women to enter into labour contracts, was set aside by the Constitutional Court (Judgement 30/31, 29 November 1990); the Civil Code 2001 abolishes the spousal authorization, although the welfare of the family is to be taken into account in the choice and pursuit of occupation.
In a few cases, provisions on legal capacity are contained in gender-specific legislation. For instance, the Philippines' Women in Development and Nation Building Act of 1992 grants women full legal capacity to act and to enter into contracts, regardless of their marital status.
Norms concerning the internal organization of the family and the conduct of family affairs may affect the ability of women to acquire and control property, including land. The legislation of some countries recognizes the husband as household head or representative (the Civil Codes of Dominican Republic, Honduras and Nicaragua), and grants him exclusive administrative rights over family property (Dominican Republic, Honduras) and even over the personal property of the wife (Dominican Republic). (Galán, 1998) In the Philippines, the Family Code provides for community property, with joint administration by both spouses, although in case of disagreement, the decision of the husband prevails.
In several countries, the last decade has witnessed some positive changes, particularly in relation to the adoption of community property as the default marital property regime. The Family Code of Ethiopia (2000) grants spouses equal rights in the management of the family; provides for community property in relation to property acquired after marriage, with some exceptions; creates a presumption of common property for goods registered in the name of one spouse; requires the consent of both spouses for transfers of common property; and envisages joint administration of family property. The Code also envisages community property for de facto unions lasting not less than three years. The Brazilian Civil Code of 2002 provides for the equality of rights and duties of the spouses and for the application, in the absence of prenuptial agreements, of a regime of partial community property, with each spouse having equal rights to administer common property and to administer his or her separate property.
Under Turkey's Civil Code of 2001, the husband is no longer the house-hold head, and men and women have equal status within marriage. The Code also introduced a community property regime with equal shares for the spouses. In Tunisia, a 1993 amendment to the 1956 Personal Status Code replaced the duty of the wife to obey her husband with the principle of mutual assistance: while the husband remains the household head, both spouses are to cooperate in the management of family affairs. Moreover, Law 98-91 (1998) allows spouses to opt for a community property regime.
Rights in family property may also be determined by customary law. In some customary systems of the Philippines, for instance, both spouses have exclusive management rights over their individual property (e.g., among the Ilocano); where the husband administers family property, he must acquire the consent of the wife for land transfers (e.g., among the Pangasinense). (Judd and Dulnuan, 2001)
Succession law affects women's access to land rights, particularly in countries where land sales are rare and inheritance is the primary form of land acquisition. Problems can arise where testamentary freedom is very broad, as testators may leave land to male relatives, following socio-cultural practices. Some legal systems recognize a nearly absolute testamentary freedom, providing only for the maintenance of the surviving spouse. The Mexican Agrarian Law 1992, for instance, which created institutional arrangements for holding and managing land redistributed under agrarian reform (ejidos), allows ejidatarios (individual right-holders) to freely choose one heir (ejido rights cannot be subdivided) among the spouse, a child or any other person. The ejidatario may exclude the spouse from succession, and field studies reveal that in many Mexican states land is usually left to the eldest son. (Katz, 1999)
In rural areas where customary law is applied, women's inheritance rights are often severely limited, not only within patrilineal systems (where property devolves along the male line, to the exclusion of women), but also in matrilineal systems (where, although property traces through the mother's line, land control usually rests with male family members). For instance, among the Mossi of Burkina Faso, wives and daughters usually do not inherit land, and even Muslim women, who under Shari'a law are generally entitled to half the share of men, tend to waive their rights in favour of their brothers. Similar patterns are found in India. (Agarwal, 1994) On the other hand, in the bilateral inheritance systems of the Philippines, where inheritance follows both the male and the female line, succession norms adopt either the primogeniture system (whereby land is inherited by the eldest male or female child) or the equal sharing system (whereby all male and female heirs inherit equally). The surviving spouse, male or female, may not inherit, but holds land as a trustee for the children. (Judd and Dulnuan, 2001)
In relation to succession, judicial decisions may annul or limit customary norms. In Nigeria, the Enugu Court of Appeal invalidated norms providing for inheritance by male family members only (Mojekwu v. Mojekwu, 1997, 7 NWLR 283) and subjecting inheritance by daughters to their undertaking to remain unmarried and raise their brothers (Mojekwu v. Ejikeme, 2000, 5 NWLR 402). On the other hand, the courts of some countries have upheld rigid and discriminatory interpretations of customary law. For instance, the Supreme Court of Zimbabwe upheld a customary norm excluding women from intestate succession, naming as the heir the second male child instead of the eldest female child. (Magaya v. Magaya, 1998)
In yet other cases, courts have only partially invalidated customary norms. In the Nepali case Dhungana v. Law, Justice and Parliamentary Affairs Ministry (4 S.Ct. Bull. 1), the petitioner challenged the provisions of Nepal's National Civil Code limiting daughters' inheritance rights (entitling them to an inheritance share only after they reached the age of 35 unmarried, and providing for land restitution to the family if they subsequently married). The Supreme Court, while recognizing that the norm discriminated against women, did not invalidate it, but directed the government to amend it in the light of the equality provision enshrined in the Constitution. After years of intense lobbying and debates, a Civil Code Amendment Bill was passed by Parliament in March 2002, recognizing women's equal right to inherit parental property but confirming the norm whereby women lose the land they inherit if they subsequently marry.
In the Indian case Kishwar v. Bihar (1996, 5 SCC 125), the Supreme Court held that the provisions of the 1908 Chotanagpur Tenancy Act of Bihar, limiting succession in tenancy relationships to the male line, violated women's right to livelihood recognized in the Constitution. While not striking down the provisions, the court declared that female heirs of the tenant have a remedy under the Constitution to continue holding the land so long as they are dependent on it, and called on the State of Bihar to amend the law.
Rights to natural resources are extremely important for rural women. Firstly, women's livelihoods in rural areas crucially depend upon them, especially in developing countries. Secondly, the nature and extent of these rights affect women's bargaining power within the household (vis-à-vis husbands and male family members), as well as within the community and society at large. Yet women's rights to natural resources are often curtailed. Beyond the family and succession law norms examined in the previous section, this may be caused by norms specifically concerning natural resources. While in most cases these are gender-neutral in formulation, their practical implementation or their interaction with other social norms and practices (particularly customary law) may lead to inequitable outcomes. As a result, in many parts of the world women have few independent rights to natural resources. Some interesting developments of the 1990s have attempted to address this issue.
While land legislation long made no reference to gender, laws adopted since the 1990s have paid greater attention to gender equity, by embracing the principle of non-discrimination, abrogating customary norms, presuming joint ownership of family land, outlawing land sales without consent of both spouses and providing for women's representation in land management bodies.
For instance, the Eritrean Land Proclamation of 1994 explicitly states the principle of non-discrimination in land rights, and regulates women's land rights with regard to succession, marriage and divorce. The Niger's Rural Code of 1993 recognizes the equal right of citizens to access natural resources without sex discrimination. In Burkina Faso, Law 14 (1996), confirming previous legislation, provides for the allocation of state-owned land without distinction based on sex or marital status, and under the Mozambican Land Act of 1997, both men and women may have rights in state-owned land.
The Tanzanian Land Act of 1999 explicitly affirms the equality of men's and women's land rights. Spousal co-ownership of family land is pre-sumed. Consent of both spouses is required to mortgage the matrimonial home, and in case of borrower default, the lender must serve a notice on the borrower's spouse before selling mortgaged land. Moreover, a fair balance of men and women is to be ensured in the appointment of the National Land Advisory Council. Under the Ugandan Land Act of 1998, specific provisions ensure women's representation in the Uganda Land Commission, in Land District Boards and in parish-level Land Committees. Although selling, leasing or giving away land requires the consent of the spouse, a clause introducing the presumption of spousal co-ownership, initially included in the Bill passed by the Parliament, was excluded by the President from the gazetted text.
Customary land tenure remains widespread in Africa and Asia. While these elements are extremely diverse, in most cases rights in arable land are allocated by the lineage authority to the (male) household head; women have secondary rights, i.e., cultivation rights, obtained through the relationship with male family members (husbands and male relatives). With population pressures, cultural change and agricultural intensification and commercialization, many customary systems have evolved towards greater individualization, extending the rights vested in (male) household heads and eroding women's secondary rights. (Mackenzie, 1998; Gray and Kevane, 1999)
On the other hand, women may hold important rights under customary law. In the bilateral systems of the Philippines, for instance, both men and women can hold land. (Judd and Dulnuan, 2001) Customary law may also grant women rights additional to those envisaged by statutory law. A typical example is where a land titling programme issues freehold titles to male household heads without mentioning women's secondary rights, which continue to be recognized only under customary law. Field studies show that women and men rely on different norms of both statutory and customary law to support their land claims, and that the extent of women's land rights is in practice determined by the interplay of these norms (e.g. on Kenya, Mackenzie, 1998).
Judicial decisions have also played an important role in determining women's land rights, particularly by invalidating discriminatory norms on constitutional grounds. A landmark case is Ephrahim v. Pastory and Another, decided by the High Court of the United Republic of Tanzania. (Mwanza PC, Civil Appeal No. 70 of 1989) There, a Haya woman who had inherited land from her father sold it outside the clan. A male clan member brought an action to declare the sale void, as women could not sell land under Haya customary law (as codified in the Declaration of Customary Law of 1963). The Tanzanian High Court invalidated the norm on the basis of the principle of non-discrimination (affirmed in the amended Tanzanian Constitution and in international human rights treaties ratified by the United Republic of Tanzania). The court stated therefore that Haya women could sell land on the same conditions as Haya men, and held the disputed land sale valid.
Traditionally, very little attention was paid to gender within agrarian reform programmes, ranging from land titling to land redistribution. For instance, in the Kenyan land registration programme (1954 onwards), registration was usually made to the male household head, thereby undermining women's unregistered secondary rights. (Shipton, 1988; Mackenzie, 1998) In India, state-level land tenancy reforms and land redistribution programmes mainly benefited male household heads. (Agarwal, 1994) Most Latin American agrarian reforms have targeted household heads and permanent agricultural workers in formal employment; both groups consist predominantly of men.
In some cases, agrarian reform laws explicitly discriminated against women. In Mexico, for instance, up to 1971 only men over 18 were eligible for the reform programme, while women were eligible only if household heads. As a result, only a very small percentage of women benefited from Latin American land redistribution programmes (between 4 and 15 percent in Chile, Colombia, Costa Rica, El Salvador, Honduras, Mexico, Nicaragua and Peru) (Katz, 1999)
In the 1990s, agrarian reforms have paid greater attention to gender. Nicaragua's land titling legislation (Laws 209 of 1995 and 278 of 1997) grants men and women equal rights to obtain land titles, and provides for joint titling for couples, whether married or not. In Paraguay, the 1992 Constitution includes among the fundamental principles of the agrarian reform women's participation in reform plans on an equal basis with men. In Brazil, the 1988 Constitution and Law 8629 (1993) state that both men and women, regardless of their marital status, can be allocated property rights or concessions under the agrarian reform, either individually or jointly. Ordinance 33 (2001), adopted by the Minister for Agrarian Development, institutionalizes an affirmative action programme to facilitate rural women's access to land.
Under the Ugandan Land Act of 1998, customary land right certificates are to be issued recording all interests in land not amounting to ownership, including customary use rights (usually enjoyed by women in their husband's land). Moreover, while decisions on land adjudication are to be made according to customary law, decisions denying women access to ownership, occupation or use are null and void.
In South African land reform, gender equity is one of the fundamental principles of the White Paper on Land Policy, and a specific Land Reform Gender Policy was adopted in 1997. The policy has been implemented in a variety of ways. First, legislation must be formulated in non-discriminatory terms. For example, right holders are referred to as he or she in the Extension of Security of Tenure Act of 1997 (sec. 6(1)) and in the Interim Protection of Informal Rights Act of 1996 (sec. 2(1)). Second, non-discrimination is in some cases explicitly referred to. For instance, the Communal Property Associations Act of 1996 empowers communities to own and manage property through associations complying with several requirements, including non-discrimination on the basis of sex and gender. Third, relevant case law has been developed under agrarian reform legislation. In Hadebe v. Hadebe and Another (LCC 138/99, 14 June 2000), a black woman had purchased land but registered it to her son as a nominee because the Black Administration Act and the Natal Code of Bantu Law prevented black women married under customary law from holding property. She brought an action before the Land Claims Court under the Restitution of Land Rights Act of 1994, in order to transfer the property into her name. The court held that the discriminatory statutory provisions were inconsistent with the principle of equality stated in the Constitution, and ordered the property transfer in favour of the woman.
In the Philippines, the Comprehensive Agrarian Reform Law of 1988 grants women rural labourers equal rights to own land and to participate in advisory and decisionmaking bodies. Women's right to equal treatment in agrarian reform and land resettlement programmes is confirmed by the Women in Development and Nation Building Act of 1992. The implementation of these provisions has been improved by administrative guidelines adopted by the Department of Agrarian Reform, namely Memorandum Circular 18 of 1996 and Administrative Order 1 of 2001. Under these guidelines, no sex discrimination can be made in beneficiary selection, and land titles are to be issued in the name of both spouses (whether legally married or not) when both spouses are jointly working and cultivating common tillage. Moreover, the consent of both spouses is required for land sales, mortgages and all other transactions involving waiver of rights. (Judd and Dulnuan, 2001) Administrative Order 96-29 (1996) provides that contracts concluded with persons occupying forest lands must be signed by both spouses.
It is hard to assess the overall effectiveness of these norms in increasing women's participation in reform programmes. The Nicaraguan titling programme has led to a substantial increase in the number of women land owners. On the other hand, in Brazil land is still usually registered with the husband and joint registration remains rare, also because many rural women lack the documents required to obtain land titles. The 1996 Agrarian Reform Census revealed that only 12.6 percent of land reform beneficiaries were women, although there was considerable variation by state. (Guivant, 2001)
In any case, even in programmes granting titles to women, attention should be paid to the extent to which women effectively control land, especially in the case of joint titles. In Mexico, the 1992 Agrarian Law grants equal rights to male and female ejido members. However, in practice women ejido members usually obtain their status through succession from their husbands rather than through direct land allocation under the land reform. (FAO, 1994) Only a small number of ejido members are women (16.3 percent in 283 ejidos surveyed by Katz, 1999), and the percentage of women in ejido leadership positions is even lower (4.9 percent of comisariados ejidales surveyed by Katz, 1999). Decisions on the alienation of allocated plots are taken exclusively by (usually male) ejido right-holders, without the need for spousal consent.
Finally, many agrarian reform programmes still largely ignore gender. Law 98-750 (1998) of Côte d'Ivoire, outlining a titling programme, states that every person may access land but contains no provisions on gender. The situation is the same for most agrarian reforms adopted in Central Asia. For instance, under the 1994 Regulations on land use rights of Kyrgyzstan, land titles are registered in the name of the household head; the registration must indicate the number of family members but not their names or sexes. (Giovarelli and Duncan, 1999)
Legislation concerning natural resources other than land rarely refers to gender, but there are some recent exceptions. These laws take into account gender, mainly by providing for:
inclusion of gender equity among the objectives of the law. For instance, the South African National Water Act of 1998 includes among its explicit purposes the promotion of equitable access to water, redressing the results of past gender discrimination and ensuring appropriate gender representation in the competent institutions.
requiring consideration of gender in natural resource management. The South African Water Act, for instance, requires the authority to take into account the need to redress the results of past ... gender discrimination in the issuance of licences, in the allocation of financial assistance and in the performance of the functions of the catchment management agencies. In the Philippines, Administrative Order 98-55 (1998, as amended), integrates gender into natural resource policies, programmes and activities.
granting special support to women users of natural resources. In the Philippines, the Fisheries Code of 1998 includes support for women fishers among its policy directions and among the functions of the Bureau of Fisheries and Aquatic Resources.
mechanisms ensuring women's representation in natural resource management bodies. For example, the Nepali Irrigation Regulation of 2000 requires that executive committees of water user associations include at least two women (out of nine members). Under the Water Act of South Africa, the responsible minister may appoint members of the governing board of catchment management agencies to achieve sufficient gender representation. Under the Fisheries Code of the Philippines, representatives of women fishers are included in fisheries management councils.
In many countries, women farm workers face hard working conditions. While respect for labour rights in plantations varies immensely from estate to estate, field studies reveal widespread discriminatory practices, including:
discrimination in access to employment, with women concentrated in subordinate and lower-paid jobs in the fields and men in higher positions, particularly as supervisors and headmen;
wage differentials, with higher wages for typically men's positions (e.g. sugar cane cutters) than for women's positions (e.g. weeders);
discrimination in access to training and vocational courses;
discrimination in allocation of benefits, such as housing;
sexual harassment; and
discrimination within trade unions (regarding participation and access to leadership positions).
(Mbilinyi, 1995, sugar cane plantation in Tanzania; Bob, 1996, coffee plantation in South Africa)
In many countries, legislators have recently paid greater attention to gender in the labour legislation applicable to agriculture. An example is provided by South Africa, where women farm workers had until recently very little protection. In 1993, legislation on minimum labour standards was extended to agricultural workers. Moreover, the Employment Equity Act of 1998 prohibits direct and indirect unfair discrimination in access and treatment on grounds of gender, sex, pregnancy, marital status and family responsibility. Where discrimination is alleged, the burden of proof is placed on the employer. The Act also provides for affirmative action, including preferential treatment and numerical goals, with regard to establishments employing 50 or more workers (including agricultural employers).
Some countries have tackled specific issues typically concerning women workers, especially on plantations. Brazilian Laws 9029 (1995) and 9799 (1999) prohibit employers from requiring sterilization or pregnancy certifications or examinations as a condition for employment, and bar employers from conducting intimate examinations of employees. Several countries have adopted specific norms on sexual harassment in the workplace (e.g., the 1995 Anti-Sexual Harassment Act of the Philippines), which apply equally to farms and plantations.
Developments have also come through judicial decisions. In India, guidelines on sexual harassment on the workplace were developed by the Supreme Court in Vishaka v. Rajasthan and Others (AIR 1997 SC 3011), building on the Indian Constitution and the CEDAW. Lawsuits have also been brought by women agricultural workers, although the overall number of these cases remains low. In South Africa, case law has been developed under the Extension of Security of Tenure Act of 1997, which protects from eviction persons occupying land with the consent of the land owner, including farm workers. A particularly important case is Conradie v. Hanekom and Another (1999 (4) SA 491 (LCC)), in which the South African Land Claims Court set aside an eviction order against two farm workers, husband and wife, employed on the same farm. Having dismissed the husband, the land owner had sought to evict both. The court held that the wife, as employee, had a right not to be evicted under the Act, and her eviction order was set aside. The court also held that the Act guaranteed to her the right to family life, so that her husband (who after his dismissal was no longer a protected occupier) had a right to reside on the land as a family member.
Notwithstanding the important role of women in agricultural production, women's participation in rural cooperatives and producer associations is very limited throughout the world, although with great variation. In Africa, the percentage of women members of cooperatives ranges from 6 percent in Burkina Faso to 11 percent in Benin and 15 percent in Sudan, and the percentage of women officers is even lower; however, a substantial growth of women's involvement in rural organizations has taken place on the continent during the last two decades. (FAO, 1995) The causes of this limited participation are primarily socio-cultural (taboos, etc.). Moreover, cooperative by-laws may contain direct or indirect discriminatory provisions; a common example is requiring land ownership as a condition for membership, which de facto excludes women where land distribution is gender-biased. Family law norms on the legal capacity of married women may also hinder women's involvement.
Traditionally, legislation on cooperatives contains no provisions on gender. The Philippines' 1990 Cooperative Code and the Niger's 1996 Ordinance on Cooperatives, for example, are worded in gender-neutral terms. However, some more recent laws explicitly address gender issues. Nicaragua's Law on Agricultural and Agro-industrial Cooperatives (1990) prohibits cooperatives from discriminating on the basis of sex and provides for the full integration of women in cooperatives on the basis of equality of rights and obligations. Mexico's General Law on Cooperatives of 1994 also states the principle of gender equality.
In the United Republic of Tanzania, the Co-operative Societies Act of 1991, as amended in 1997, prohibits gender discrimination in access to membership, states that both men and women can be elected as cooperative representatives and affirms the principle of equality of all members in the activities of cooperatives. Burkina Faso's 1999 law on cooperatives prohibits discrimination on the basis of sex. In Ethiopia, Co-operative Societies Proclamation 147 (1998) includes among the Guiding Principles of Co-operative Societies the prohibition of gender discrimination. Namibia's Co-operatives Act of 1996 contains a similar provision, and provides for women's representation in the managing boards of cooperatives having a minimum number of women members.
In the Philippines, women have equal access to membership in social, civic and other organizations (Women in Development and Nation-Building Act of 1992), and both spouses have the right to join cooperatives (Administrative Order No. 1 of 2001). In India, some state-level laws on cooperatives have been amended to reserve for women seats in managing committees (Kerala in 1985; Andhra Pradesh in 1991). Some of these laws have been challenged before courts on grounds of (reverse) sex discrimination. In Toguru Sudhakar Reddy and Another v. The Government of Andhra Pradesh and Others, the Supreme Court dismissed such a challenge with regard to the legislation of Andhra Pradesh (AIR, 1994, SC, 544). In K.R. Gopinathan Nair v. The Senior Inspector-cum Spl. Sales Officer of Co-operative Societies and Others (AIR 1989, Kerala, 167), a similar challenge relating to the legislation of Kerala was dismissed by the High Court of Kerala.
Some legal systems envisage special forms of associations for rural women. Within Mexican ejidos, women over the age of 16 (either ejidatarias or spouses or relatives of ejidatarios) may exercise crop, livestock and rural industry activities through a specific form of association (Unidades agrícolas industriales de la mujer, UAIMs). The functioning of UAIMs is regulated by a 1998 regulation adopted under the Agrarian Law of 1992. Under the Law, ejido assemblies may allocate land to UAIMs, although in practice only a limited number of ejidos have done so (12 percent of the ejidos surveyed by Katz, 1999).
Rural women face more difficulties than men in gaining access to credit for agricultural purposes. In Africa, the percentage of rural credit directly benefiting women ranges from 5 percent (Burkina Faso's National Fund for Agricultural Credit) to 32 percent (Zimbabwe's Agricultural Finance Corporation). Moreover, women obtained only 2.8 percent of the loans from Turkey's Agricultural Bank, 5 percent from Jamaica's Bank of Agricultural Credit, 6 percent from the Agricultural Credit Corporation in Jordan and 15 percent from the Agricultural Bank in Iran. (FAO, 1995 and 1996) This limited access to credit is mainly caused by high illiteracy rates, limited access to formal employment, transport costs, fear of indebtedness, lack of information, cumbersome procedures and exclusion from cooperatives through which credit is provided.
As noted in Chapter 8, women's access to credit may also be curtailed by their limited land rights, preventing them from offering land as collateral to secure a loan. Even where this is not the case, rural financial institutions may in practice require the husband's authorization on women's applications for credit. Moreover, in the rural areas of many developing countries, credit is obtained informally through interlinked contracts, whereby two persons are bound by several contractual relations simultaneously (e.g. a landlord or employer lending money to the tenant or farm worker); therefore, women's access to credit may be affected by the fact that tenancy or employment contracts are mainly held by men.
Credit laws usually do not make explicit reference to gender, and on paper women have rights equal to men. However, in the last decade, some countries have taken measures to address the reality of restrictions on women's access to credit, mainly in two ways. First, sex/gender discrimination in access to credit may be explicitly prohibited. In South Africa, the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 prohibits unfair discrimination against women by the state and by all persons, including in access to credit. In the Philippines, the Women in Development Act of 1992 grants women equal access to government and private sector programmes granting agricultural credit, and the Social Reform and Poverty Alleviation Act of 1997 provides inter alia for a gender-responsive approach to poverty alleviation and for credit programmes benefiting rural women.
Second, affirmative action may be envisaged. In Nicaragua, Law 209 of 1995 grants priority for women in access to credit. (Galán, 1998) In Brazil, Ordinance 121 (2001) of the Minister for Agrarian Development reserves preferentially to women 30 percent of credit granted under the National Programme to Support Family Agriculture (PRONAF) and by the Land Bank (established in 1998 to provide credit for land purchases and for basic agricultural infrastructure). Under the 1997 Agriculture and Fisheries Modernization Act of the Philippines, the state must promote access to credit for farmers and fishers, particularly the women involved in the production, processing and trading of agriculture and fisheries products.
The 1990s have also witnessed a massive expansion of women-targeted micro-credit programmes. These were pioneered by the Grameen Bank in Bangladesh, and include innovative institutional arrangements over-coming women's problems in accessing credit, namely: group responsibility, with borrowers organized in groups and responsible for loans contracted by other group members; self-selection, with borrowers themselves choosing the members of their group; sequential lending, with loans granted in turn to group members; and accessibility, with bank branches and officers assigned to rural areas. Women-targeted credit programmes are also carried out by governments. An example is Fiji's Women's Social and Economic Development Programme, established by the Ministry for Women and Culture in 1993 to promote and support women's income-generating activities, including through subsidized credit. About 70 percent of the loans requested under this programme are for agriculture-related activities.
Similar developments have taken place with regard to agricultural extension and vocational training. As in the case of credit, women face much greater difficulties than men in accessing these services. Socio-cultural factors, particularly taboos relating to interactions between men and women and to women's attendance at meetings outside the home, are among the major causes.
Laws and regulations are usually silent on gender with regard to extension and training. However, some recent laws include gender-specific provisions and institutions. In South Africa, gender concerns have been integrated into education and training programmes (National Education Policy Act of 1996 and Further Education and Training Act of 1998). In Brazil, Ordinance 121 (2001) reserves preferentially to women 30 percent of training and extension services provided under the PRONAF. Under the Philippines' Agriculture and Fisheries Modernization Act of 1997, the status of women is among the special concerns of the Department of Agriculture, and special training programmes for women are provided for.
In other cases, gender is integrated through institutional reforms in competent ministries. For instance, the Tunisian Decree 420 (2001) on the organization of the Ministry of Agriculture establishes within the Ministry a bureau for the support of rural women, responsible among other things for promoting women's training and integration in agricultural production activities. In Italy, a 1997 decree of the Minister responsible for agriculture established a unit to monitor women's economic activities, collect data and formulate policies and strategies. In Burkina Faso, Decree 97-428 (1997) establishes within the Ministry for Animal Resources a directorate on extension service and technology transfer, which is responsible for promoting awareness among new actors, including women. Legislation may also add women's representatives to training-related institutions (Vanuatu's National Training Council Act of 1999; South Africa's Further Education and Training Act of 1998 and Skills Development Act of 1998). Some countries have made efforts to increase the number of female extension and training officers. For example, in Tanzania, one village extension officer out of three is a woman. (Due, et al., 1997)
Norms advancing women's legal status are often scarcely implemented in rural areas, due to the persistence of discriminatory socio-cultural norms and practices, often internalized by women themselves. Indeed, while law often reflects and follows social change, gender-equality provisions promote social change, and their implementation is therefore much more difficult, as the process of social and cultural change is inevitably slow. Other major factors affecting implementation of gender-related norms include:
rural women's lack of awareness of their statutory rights. Where illiteracy rates are high and access to documents problematic, publication of laws in official bulletins is unlikely to reach rural women.
rural women's lack of resources to enforce their rights. Often, legal aid funds are mainly allocated to criminal law cases, rather than to family law disputes (where women's rights issues mainly arise). Also, while the Beijing Platform for Action calls for the provision of free or low-cost legal services designed to reach women living in poverty, many countries have not paid attention to gender in their legal aid schemes. One exception is India's Legal Services Authorities Act of 1987, as amended in 1994, which explicitly lists women among possible legal aid beneficiaries.
lack of resources for the implementation of gender-related legislation. Few resources may be allocated by government to implement gender-sensitive legislation, ranging from gender-sensitive agrarian reforms to women-targeted credit programmes and to gender-specific institutions.
women's scarce representation in decisionmaking positions. Women may not be represented on policymaking bodies, whether agriculture-related ministries or elected political office.
Some of these constraints may mean that provisions on gender equality often have no real impact on women's everyday lives. Nonetheless, there are several avenues for enforcement of women's rights, and these means of implementation are explored below.
Women's access to courts is in many countries severely limited. Practices like female seclusion hinder the possibilities for women to claim their rights. Moreover, in many rural areas, it would be shameful for a woman to claim before courts her rights vis-à-vis her male family members (as documented in India by Agarwal, 1994). In many countries, women are under-represented in the judiciary, and prejudices about the credibility of female witnesses are widespread. Court fees may also constitute an obstacle for rural women, who tend to have less access to cash than men.
Women's access to courts may also be constrained by norms limiting their legal capacity and preventing them from bringing judicial disputes autonomously. (See section 3.3.1.) In most countries, these norms have been repealed (e.g., South Africa's Recognition of Customary Marriages Act of 1998). Some countries have affirmatively granted to women equal access to legal remedies. For example, in the Philippines, Administrative Order 1 of 2001 states that either spouse may bring claims relating to the agrarian reform. (Judd and Dulnuan, 2001)
The case law examined in this chapter shows that although women's access to justice may be constrained, courts constitute a fundamental institution for the enforcement of women's rights. Moreover, courts are a crucial agent of legal change, invalidating discriminatory norms on constitutional grounds (Pastory case in Tanzania), amending the application of norms in the light of constitutional principles (Kishwar case in India) and directing governments to amend discriminatory legislation (e.g. Dhungana case in Nepal).
A clear trend that emerged in the last decade is the establishment of human rights or gender-specific commissions. These are independent authorities competent to investigate human rights violations, both upon complaint and on their own motion. Compared to courts, they provide more accessible and speedy mechanisms of redress, and are less costly and cumbersome. Another advantage is that where violations may be investigated on the court's own initiative, discriminatory situations may be redressed even where the victims have no access to justice.
Human rights commissions usually do not issue binding decisions, but rather recommendations; an exception is the Human Rights Commission of Uganda, whose decisions are as binding and enforceable as court judgments. More often, when their recommendations are not complied with, human rights commissions may report to Parliament or, in a few cases, bring an action before courts (as in the case of Ghana's Commission on Human Rights and Administrative Justice). In federal jurisdictions, human rights commissions may be established at both federal and state level (e.g., India and Mexico).
An example of a gender-specific institution is India's National Commission for Women (established under the National Commission for Women Act of 1990), which may investigate violations both upon complaint and on its own motion. The South African Commission on Gender Equality has the same dual mandate, and may resolve disputes by negotiation, mediation or conciliation, and may refer matters to the Human Rights Commission (Commission on Gender Equality Act of 1996).
Human rights and gender commissions can contribute to the implementation of women's rights. However, their effectiveness may be limited by resource constraints and by factors similar to those relating to courts, such as geographical inaccessibility and cultural norms preventing women from claiming their rights.
The last decade has witnessed a renewed interest in the dispute settlement role of customary institutions. To mention just an example, the Niger's 1993 Rural Code provides for a mandatory conciliation procedure before customary authorities as a condition for initiating judicial proceedings.
For women, customary institutions have advantages and disadvantages. On the one hand, compared to courts, customary institutions may provide more easily accessible (both geographically and economically) and speedier fora for rural women, and may enjoy greater social legitimacy. On the other hand, while their nature varies considerably from place to place, customary institutions are often gender-biased in composition and in orientation. In most places, they are constituted by male elders, and apply a male-biased interpretation of customary law. Women may be discriminated against even procedurally, as they may need a male intermediary to bring a dispute and to appear before the authority.
Some countries have attempted to improve the gender outlook of customary institutions. In India, the Constitution, as amended in 1993, provides for direct election of members of panchayats (local government institutions rooted in tradition), and reserves to women one-third of the seats. In South Africa, the Constitution recognizes the role and status of traditional institutions, although subject to the principles of the Constitution. Similar norms are contained in the Constitution of Uganda. It is difficult to assess whether this type of norm is effective in reforming deeply rooted institutions. In both India and South Africa, there are reports that most customary institutions continue to be dominated by male elites, and to favour a gender-biased interpretation of the law. While guaranteeing women's representation through quotas is an important tool, women sitting in councils may in practice not speak, may act merely as spokespersons for their male relatives or may otherwise face resistance to their role.
In the last decade, gender has received considerable attention. At the international level, the Beijing Platform for Action has provided comprehensive policy directives, the Optional Protocol to the CEDAW has strengthened international human rights mechanisms and international environmental instruments have addressed gender issues. Domestic measures have also been adopted in various forms. At the policy level, plans of action have been adopted by most countries to follow up the Beijing Platform for Action. In the legislative arena, efforts have been made to eliminate discrimination and to improve women's legal position, e.g., by reforming family and succession law, by revising agrarian law, by protecting women's labour rights and by prohibiting discrimination and providing affirmative action in certain contexts. Judicially, discriminatory norms have been declared unconstitutional, and women's rights have been enforced.
Notwithstanding these improvements, much remains to be done. Many countries still have discriminatory norms, including succession law limiting women's right to inherit land, family law granting the husband greater rights in family property, agrarian reforms allocating land to (male) household heads and norms subjecting women's employment and other contracts to the husband's authorization. Where legislation is not discriminatory, its gender-neutral formulation may not be enough to overcome inequalities entrenched in society. Finally, gender-sensitive legislation may not be implemented due to socio-cultural factors.
In these cases, action needs to be taken in two directions: legal reform and implementation. Legal reform is needed to eliminate directly or indirectly discriminatory norms and to address gender issues where gender-neutral legislation is inadequate to counter existing practice. In some cases, special measures to advance the position of women may be necessary to redress past and existing discrimination (e.g., granting priority to women in land distribution or in access to public agricultural credit programmes). Other sector-specific measures may also be needed (e.g., joint titling in the context of land redistribution or registration).
As women's rights are determined by a complex system of rules, legal reform needs to be comprehensive. For instance, where family and succession laws restrict women's legal capacity and inheritance rights, a reform of land legislation to redress gender inequality in land rights can only be effective if accompanied by a reform of these other laws.
Where appropriate legislation is already in place, efforts must be made to effectively implement it, addressing the factors constraining implementation. These include educating rural women regarding their rights, increasing women's representation in decisionmaking bodies, providing legal assistance and addressing legal and cultural barriers to women's access to the courts and other enforcement mechanisms.
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