Previous Page Table of Contents Next Page


I. INTRODUCTION


1.1. Object, scope and methodology

This study analyses the gender dimension of norms relating to agriculture, focusing on three areas of law: rights to land and other natural resources; agricultural labour rights; and rights concerning agricultural self-employment activities, encompassing women’s status in cooperatives and family enterprises on the one hand, and their rights of access to credit, training, agricultural extension and marketing services on the other.

While these issues are dealt with separately for reasons of clarity, they are in reality intertwined. For example, access to credit partly depends on land ownership, as land titles can be used as collateral to secure loans. Moreover, cooperative by-laws may require land ownership as a condition for membership of rural cooperatives. On the other hand, women’s limited access to credit and employment constrains their ability to purchase land. Some important aspects of women’s rights are not covered in this study, due to their only indirect bearing on agriculture (e.g. reproductive health and sexual violence).

In order to reconcile the need for a comprehensive review of the relevant legislation of different countries with space and time constraints, the study adopts a three-tier approach. First, brief regional overviews highlight the trends prevailing in each region of the world (the Americas, sub-Saharan Africa, Northern Africa and the Middle East, Asia, the Pacific region and Europe). Second, the legal systems of ten countries are analysed in detail. The countries are chosen from all the regions and, within each region, from the main sub-regional groupings (e.g. West, East and Southern Africa, both Anglophone and Francophone; North and South America). The countries covered are: Brazil, Burkina Faso, Fiji, India, Italy, Kenya, Mexico, Philippines, South Africa and Tunisia. Third, particularly relevant information on other countries (e.g. landmark legislation and case law) is included in boxes.

Through the context provided by the regional overviews, through the extreme diversity of the covered countries (in terms of geographical location, environment, history, culture, language, legal tradition, level of development, relative importance of the agricultural sector, etc.) and through the boxes on other countries, the study aims at offering a picture as indicative as possible of the trends prevailing in most areas of the world.

1.2. The principle of gender equality

Gender equality is the key principle underlying the protection of women’s rights. Some definitions are necessary to clarify its content. First, social science usually makes a distinction between “sex” and “gender”. “The term ‘sex’ refers to the congenital and universal biological differences between men and women; ‘gender’ relates to the socio-cultural and historical characteristics that determine how men and women interact and apportion their roles” (FAO, 1994). In the 1990s, social science moved away from an approach focusing on women and on integrating “women in development” toward an approach looking at “gender”, i.e. at the broader issues concerning the socially determined roles of and relations between men and women (what is usually referred to as the “gender and development” approach). As for law, most legal instruments, including the Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW), refer to sex, rather than gender, as prohibited ground of discrimination (e.g. the Constitutions of Fiji, Kenya and Italy). On the other hand, some more recent instruments refer to gender or to both gender and sex, reflecting the changes that have taken place in social science thinking (e.g. the 1996 Constitution of South Africa). As this study analyses legislation and case law, the differences between sex and gender are not emphasized, and the two terms are mostly used in conjunction (e.g. “sex/gender”). Moreover, from a legal point of view, the gender dimension of agriculture-related legislation is mainly determined by norms concerning the legal status of women and/or discriminating against women. It is therefore on these norms that this study focuses.

The principle of gender equality encompasses the prohibition of discrimination and the adoption of special measures in favour of women. Sex/gender discrimination is defined in the CEDAW as “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field” (art. 1). However, “not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under [human rights law]” (Human Rights Committee, 1989).

Discrimination may take different forms. It is direct when norms or practices explicitly differentiate treatment on the basis of sex/gender; it is indirect when although norms or practices do not make explicit reference to sex/gender, they include requirements that advantage persons of one sex. Discrimination is de jure when it is envisaged by law, de facto when although the law is gender neutral, discrimination exists in practice[1].

Women are not a homogeneous social group, but are differentiated according to class, caste, age, household composition (e.g. whether male- or female-headed), relation to land (e.g. tenants and land owners), applicable personal law (when this varies depending e.g. on religious belonging), marriage order (where polygamy is practised), belonging to an indigenous community, etc. Therefore, the prohibition of sex/gender discrimination must be applied in conjunction with the prohibition of discrimination among women on other grounds, envisaged in national and international law.

Non-discrimination may not be enough to overcome economic and social obstacles hindering the achievement of equality of men and women. Therefore, legal instruments may contain an “affirmative action” clause, i.e. a clause allowing (or requiring) the state to adopt special measures conferring temporary advantages on women, with the long-term aim to achieve de facto gender equality.

1.3. The sources of women’s legal status

The legal status of rural women is determined, to varying degrees, by several levels of law: international law, national law, customary law and norms of a religious origin. These are not isolated one from the other, but are intertwined in dynamic interaction processes.

1.3.1. International law

Women’s rights are protected by international human rights treaties, particularly the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). This states the principles of non-discrimination on the basis of sex (art. 2) and of affirmative action (art. 4), and contains a provision specifically devoted to rural women (art. 14). The principle of non-discrimination is stated in the CEDAW in a very broad way, applying not only to state-enacted laws and regulations, but also to the behaviour of private individuals (cf. arts. 2(e), 5 and 10(c)), and including both discriminatory purposes and effects.

The principle of non-discrimination on the basis of sex is also affirmed in the Universal Declaration of Human Rights (UDHR, arts. 2 and 7), in the International Covenant on Economic, Social and Cultural Rights (ICESCR, arts. 2(2) and 3), and in the International Covenant on Civil and Political Right (ICCPR, arts. 2(1), 3 and 14), as well as in regional human rights treaties such as the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR, art. 14), the American Convention on Human Rights (ACHR, art. 1), and the African Charter on Human and Peoples’ Rights (ACHPR, art. 2). Within the African regional human rights system, a Protocol on the Rights of Women in Africa has been drafted but not yet adopted. An Arab Charter on Human Rights, also affirming the non-discrimination principle, has been adopted but is not yet in force.

Furthermore, relevant norms are found in some international environmental treaties (e.g. Convention to Combat Desertification, arts. 5 and 10) and in ILO Conventions (e.g. the Equal Remuneration Convention 1951 and the Discrimination (Employment and Occupation) Convention 1958).

Under international law, these international treaties are binding upon the states ratifying them; states reserving to some treaty obligations are not bound by them. The CEDAW has been ratified by all the states covered by this study, but a substantial number of reservations have been put forward. Most reservations relate to specific provisions of the CEDAW; Tunisia adopted a general reservation, by which the government pledges not to adopt “any organizational or legislative decision in conformity with the requirements of this Convention where such a decision would conflict with the provisions of Chapter I of the Tunisian Constitution” (entitled “General provisions”, this encompasses the Bill of Rights, as well as other provisions, such as article 1, which makes Islam the religion of the State). Moreover, several states qualified their obligations under the CEDAW through statements on the interpretation and implementation of its provisions. For instance, the government of India stated that, in implementing articles 5(a) (customary practices) and 16(1) (family relations), it would follow a “policy of non-interference in the personal affairs of any Community without its initiative and consent”; this declaration limits the possibility for the government to reform discriminatory customary law and practices. Detailed information on ratifications, reservations, and interpretative statements and declarations is contained in Table 1.

At the international level, compliance with CEDAW obligations is ensured by a system of periodic reports submitted by states to the Committee on the Elimination of All Forms of Discrimination Against Women (Part V of the CEDAW) and by a complaint-based mechanism (established by the 1999 Optional Protocol). Under the latter, individuals and groups can submit to the Committee complaints concerning violations of women’s rights by the states ratifying the Protocol (see Table 1); while the outcome of the proceeding is not a binding decision but the communication to the parties of the “views” and recommendations of the Committee, states are to “give due consideration” to these, and to provide a written response (arts. 1, 2 and 7 of the Protocol). Moreover, the Committee may start motu proprio a confidential inquiry procedure on “grave or systematic violations” (arts. 8 and 9); states may opt out of this procedure through a declaration (art. 10), but no country covered by this study has done so.

The possibility to bring claims before domestic courts to enforce women’s rights under international law varies from state to state. In some states, domestic legislation incorporating the treaty into the domestic legal system is required (e.g. Italy). In other states, self-executing treaty provisions can be directly relied upon in courts (e.g. Tunisia and South Africa[2]). Another way international law affects women’s legal status is by providing guidance in the interpretation of domestic law. For instance, the Constitution of South Africa states that international law must be considered when interpreting the Constitution, and that interpretations of national legislation consistent with international law must be preferred over alternative interpretations (secs. 39(1)(b) and 233).

In addition to international treaties, documents adopted in international conferences (Declarations, Plans of Action, etc.) contain provisions on women’s agriculture-related rights. Although not legally binding, these instruments may reflect existing principles of customary international law (e.g. several provisions of the Rio Declaration), and in any case represent the trends prevailing in the international community (soft law). Particularly relevant to women’s rights in agriculture are the 1992 Rio Declaration on Environment and Development (Principle 20), the 1992 Forest Statement (Principles 2(d) and 5(b)), Agenda 21 (Chapter 24), the 1993 Vienna Declaration on Human Rights, 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 Declaration and Plan of Action.

1.3.2. Domestic law

National legal systems, and women’s legal status within them, differ greatly from country to country. At the same time, influences and exchanges, both coercive and voluntary, have determined similarities across countries. Colonial powers exported their legal systems to their colonies. Moreover, the French Code Napoleon 1804 (and its patriarchal family law) influenced the civil law of many European countries, including Italy, and of most post-independence Latin American countries.

Most constitutions prohibit sex/gender discrimination (e.g. the Constitution of Brazil, art. 5(I); the Constitution of Burkina Faso, art. 1(3); the Constitution of India, arts. 14 and 15(1); the Constitution of Italy, art. 3(1); the Constitution of Mexico, art. 4; the Constitution of the Philippines, art. II(14)). The Constitution of South Africa prohibits discrimination on the basis of sex, gender, pregnancy and marital status, and includes “non-sexism” among the fundamental values of the state (Provision 1 and section 9). Some constitutions state the principle of equality without specifying any ground of discrimination (e.g. the Constitution of Tunisia, art. 6).

In some cases, the principle of non-discrimination is qualified. For instance, the Constitution of Fiji exempts from the prohibition of sex discrimination family and succession law (“to the extent that the law is reasonable and justifiable in a free and democratic society”) and laws providing for the application of customary land and fishing rights (sec. 38). Similarly, the Kenyan Constitution, as amended in 1997, prohibits sex discrimination but exempts personal law and customary law (sec. 82).

Besides prohibiting discrimination, some constitutions contain an affirmative action clause (e.g. the Constitution of India, art. 15(3); the Constitution of Fiji, sec. 6(k)). In some cases, this clause does not specify the grounds for affirmative action, but is applicable to sex/gender (e.g. the Italian Constitution, art. 3(2); the Constitution of the Philippines, arts. XII(1) and XIII(1); the South African Constitution, art. 9(2)). In the Constitution of Kenya, special measures are envisaged in a double-edged way: not only a “privilege or advantage”, but also a “disability or restriction” may be imposed on the basis of sex provided that this is “reasonably justifiable in a democratic society” (sec. 82(4)(d)).

A fundamental issue concerning women’s legal status under national law is women’s legal capacity. This includes the capacity to be holders of rights and obligations, and the capacity to exercise them (i.e. to perform acts with legal effects). Under article 15(2) of the CEDAW, “states parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity”.

Under national law, the capacity to be holders of rights and obligations is usually acquired with birth, without discrimination, and lost only with death (e.g. the Brazilian Civil Code of 2002, arts. 1 and 2, the Italian Civil Code, art. 1, the Italian Constitution, art. 22, and the Civil Code of the Philippines, arts. 37 and 40).

The capacity to perform acts with legal effects (capacity to act) usually entails minimum age and other requirements, which vary according to the act performed (matrimonial capacity, capacity to own and administer property, contractual capacity, capacity to bring claims before courts, etc.). The capacity to act is analysed in the relevant chapters of the study; suffice to say here that the relevant norms have deeply evolved during the past century. For instance, in Brazil, the original text of articles 6 and 242 of the Civil Code of 1916 made married women incapable of performing certain acts without the authorization of their husband; Law 4121 of 1962 abrogated the subsection of article 6 on women’s incapacity and reduced the number of acts requiring husband’s consent; finally, the 1988 Constitution (art. 226(5)) and the Civil Code of 2002 (arts. 1511 and 1567) affirm 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.

Other norms, though not related to agriculture, constitute useful “indicators” of women’s legal status in national legal systems. These include norms on violence against women, on honour defence (as a ground for absolution for wife murder), on son preference, on marriage age and reproductive health rights (with early marriage and childbirth negatively affecting women’s access to education and employment), on political representation, etc. While these issues are not covered by this study, some examples are made available in Table 2.

Moreover, most national legal systems include plans of action and/or of institutional machinery specifically devoted to gender equality and the advancement of women, often adopted to follow up the Beijing Declaration and Platform for Action. Although not legally binding, plans of action express the government’s commitment to gender equality and contain specific policy directions. The functions and powers, and therefore the effectiveness, of institutional machinery vary considerably, ranging from advisory functions, to policy orientation and programme co-ordination, and to investigation of women’s rights violations (see Table 3).

In federal states (e.g. India and Mexico), women’s rights may differ across member states. For instance, in India, land reform legislation has been adopted at state level, and women’s rights therein vary considerably. In Mexico, each state has its own civil code, and family law varies from state to state. In some cases, decentralization coexists with the delegation of powers at supranational level, thereby increasing the complexity of the sources of women’s legal status. In Italy, for instance, while general civil law (family, successions, property, contracts, etc.) is within the domain of the state, agriculture is largely within the responsibilities of the “regions” (art. 117 of the Constitution, as amended), and of the European Community (art. 32, formerly 38, of the EC Treaty); regional legislation must remove the obstacles hindering the full equality between men and women in the social, cultural and economic life (the Italian Constitution, art. 117, as amended), and EU law includes gender equality among its fundamental principles (the EC Treaty, arts. 2 and 137) and contains legislation and case law on women workers’ rights.

A crucial issue concerning statutory law is implementation. Norms advancing women’s legal status are often scarcely implemented in rural areas, due to women’s lack of awareness of those norms and of resources to enforce them, and to the persistence of discriminatory socio-cultural practices. For instance, female seclusion practices may constrain the implementation of statutory norms on equal legal capacity.

Table 1. Gender equality in the Constitution, in the CEDAW and in norms on legal capacity


Non-discrimination in the Constitution

Affirmative action in the Constitution

Ratification of the CEDAW

Reservations and Declarations / Interpretative Statements to the CEDAW

Ratification of the CEDAW Optional Protocol

Incorporation of CEDAW into domestic legislation

Discrimination in legal capacity

Brazil

Y (5)

N

1984

R (29); WR (15, 16)

2001


N

Burkina Faso

Y (1)

N

1987

N

2001


N

Fiji

Q (38)

Y (6)

1995

WR (5, 9)

N


N

India

Y (14, 15)

Y (15)

1993

D (5, 16); R (29)

N

N

N

Italy

Y (3)

Y (3)

1985

R (19)

2000

Y

N

Kenya

Q (82)

Y (82)

1984

N

N

N

N

Mexico

Y (4)

N

1981

D (G)

1999

Y

N

Philippines

Y(2)

Y (12, 13)

1981

N

2000


N

South Africa

Y (9)

Y (9)

1995

N

N

D..A.

N

Tunisia

Y (6)

N

1985

D (15); R (G, 9, 16, 29)

N

D..A.

N

Y = Yes (numbers in brackets indicate the relevant articles).

N = No (depending on the column: absence of affirmative action clauses; absence of reservations; lack of ratification of the Optional Protocol; lack of incorporation of the CEDAW into the domestic legal system; non-discrimination in legal capacity).

Q = Qualified affirmation (presence of exceptions, etc.) (numbers in brackets indicate the relevant articles).

R = Reservation (numbers in brackets indicate the relevant articles).

D = Declaration/Interpretative statement (numbers in brackets indicate the relevant articles).

G = Reservation or declaration not referred to a specific article.

W = Withdrawn (reservation or declaration).

D..A. = Directly applicable

Note: in the case of federal states, this table only refers to national legislation. Legal capacity refers here to the general capacity to be holders of rights and obligations (while the capacity to act is analysed in greater detail in the subsequent chapters).

Table 2. Non-agricultural indicators of women’s legal status in some national legal systems

Brazil

Honour defence: in the Lopes case, a man who killed his wife upon discovery of adultery was absolved on honour grounds in first and second instance; in 1991, the Supreme Court overturned these rulings, stating that murder cannot be justified with honour defence and ordering a new trial; however, the new judge again acquitted Lopes on grounds of honour.

Burkina Faso

Reproductive health and marriage: although female genital mutilation was outlawed in 1990 (and a National Committee to Combat Female Circumcision was established), it is still practised in rural areas. Courts have sentenced some authors of female circumcision. Forced marriage (prohibited by the Persons and Family Code) and polygamy (allowed by the Code) are also widespread (SIDA, 1999; CEDAW, 2000). Minimum marriage age is 20 for men and 17 for women (Persons and Family Code, art. 238).

Fiji

Marriage capacity: minimum age for marriage differs for men (18 years) and women (16 years) (Marriage Act, art. 12).

India

Femicide: the Pre-Natal Sex Determination Technique (Regulation and Prevention of Misuse) Act 1994 outlawed femicide.

Sati (i.e. the burning or burying alive of the widow along with the body of her deceased husband): although prohibited under the Commission of Sati (Prevention) Act of 1987, sati is still practised in rural areas (SIDA, 1999). Political representation: in 1993, the 73rd and 74th Constitutional Amendment Acts reserved to women one-third of the seats in local government institutions.

Practices violating women’s rights remain widespread in rural areas, including domestic violence, femicide, child marriage, dowry and female seclusion. In this regard, India’s declaration to implement the CEDAW without interfering in the personal affairs of any community without consent severely limits the effectiveness of CEDAW’s guarantees (SIDA, 1999; CEDAW, 2000).

Italy

Sexual violence: Law 66 of 1996 amended the Criminal Code to provide for tougher criminal sanctions for rape. A judgement of the Cassation Court denied the existence of rape in a case where the victim wore jeans trousers (as victims’ co-operation is allegedly needed to take them off). The Court subsequently reversed this orientation.

Kenya

Female genital mutilation is widely practised in rural areas (SIDA, 1999). It is not prohibited by Acts passed by Parliament, although prohibitions are envisaged in two presidential decrees (1982 and 1989). A National Plan of Action to Eliminate Female Genital Mutilation was adopted by the government in 1999.

Tunisia

Marriage capacity: the minimum age for marriage is differentiated for men (20 years) and women (17 years) (Personal Status Code, art. 5).

Table 3. National plans of action and institutional machinery to follow up the Beijing Declaration and Platform for Action


Plan of Action

Institutional machinery

Brazil

“Strategies for Equality: Platform for Action to Implement the Commitments Made by Brazil at the Fourth Conference on Women”, adopted by the National Council for Women’s Rights.

National Council for the Rights of Women (CNDM), established by Law 7353 of 1985 to promote policies to achieve gender equality in all spheres. The Council actively participated in the drafting of the 1988 Constitution. Its president and 20 council members are appointed by the Brazilian President. At state and municipal level, a number of Councils for Women’s Condition have been established.

Burkina Faso

Plan of Action 1998-2000, adopted by the Ministry for the Advancement of Women.

The Ministry for the Advancement of Women was established in 1997 (Decree 270). Focal points have also been designated in all the ministries involved in gender-related policies and programmes.

Fiji

Women’s Plan of Action 1998-2008, approved in 1998 by a National Women’s Congress organised by the Ministry of Women and Culture.

Ministry of Women, Social Welfare and Poverty Alleviation (established as Ministry of Women and Culture in 1987 and subsequently restructured and renamed). Gender Focal Points in 17 Ministries and Departments (established in 1998). Inter-Ministerial Committee on Women, overseeing and coordinating the implementation of the Plan of Action (established in 1998).

India

National Policy for the Empowerment of Women (2001).

National Commission for Women, established by Act 20 of 1990 (implemented in 1992) to review legislation, recommend legislative reform, advice the government on all policy issues concerning women, and investigate violations of women’s rights (both motu proprio and upon complaint). Members are nominated by the government.

Italy

National Plan to Implement the Beijing Platform for Action, adopted by the Council of Ministers in 1997.

A National Commission for the Equality and Equal Opportunities of Men and Women, placed under the Office of the Prime Minister, was established by Law 164 of 1990. It is an advisory body counselling on activities aimed at ensuring gender equality, and it includes representatives of political parties, associations of employers and employees, women’s associations and other representatives of civil society.

A Minister for Equal Opportunities was appointed for the first time in 1996. The Department for Equal Opportunities, providing the administrative structure for the Minister, was established by the Prime Minister with Decree 405 of 1997. Commissions have also been established at regional and local level.

Kenya

Kenyan National Gender and Development Policy 2000.

A Women’s Bureau was established in 1975 as a division within the Ministry of Culture and Social Services to promote women empowerment, promote the interests of women in development projects and conduct research.

Mexico

National Programme for Women 1995-2000 - “Alliance for Equality”, which forms part of the National Development Plan 1995-2000.

An Executive Coordination Office is established within the Ministry of the Interior to coordinate activities implementing the National Programme for Women. The National Commission on Women, established in 1985, promotes and coordinates women-related projects and activities. The Commission has a Consultative Council and a Social Monitoring Board, constituted by women representing civil society organizations, women politicians and women civil servants; the Council involves civil society in the imple-mentation of programmes, while the Board involves them in the evaluation of their impact. Several states have established commis-sions for the advancement of women.

Philippines

Philippine Plan for Gender-Responsive Development (PPGD), approved for the period 1995-2025 with Executive Order 273 of 1995 in order to follow up the Beijing Platform for Action.

The National Commission on the Role of Filipino Women (NCRFW) has primary responsibility for overall coordination and monitoring of gender related activities.

Yearly General Appropriations Acts require all departments, bureaus and agencies to devote a minimum budget share for gender related projects.

South Africa

The Promotion of Equality and Prevention of Unfair Discrimination Act 2000 is legally binding for the state and all persons. It prohibits unfair discrimination on grounds of gender and sex in diverse areas (family, land rights, employment, social benefits, etc.), and envisages affirmative action. The state has a duty to promote equality by developing and implementing action plans, laws, programmes and guidelines and by raising awareness. The duty to eliminate unfair discrimination includes the auditing and amendment of laws, policies and practices.

The Commission for Gender Equality (CGE) was established by Chapter 9 of the 1996 Constitution and by the Commission on Gender Equality Act 1996 to monitor and evaluate laws, policies, customs and practices and make recommendations. The Commission also monitors South Africa’s compliance with relevant international law, and investigates gender related issues (both motu proprio and upon complaint).

An Equality Review Committee was also established by the Promotion of Equality and Prevention of Unfair Discrimination Act 2000 to monitor the operation of that Act. The Chairperson of the CGE is a member of the Committee.

Tunisia

Post-Beijing National Plan of Action 1997-2001, adopted by the Ministry for Women and the Family.

The Ministry for Women and the Family, established in 1993, elaborates policies on women and family issues. The National Council on Women and the Family assists the Ministry with advisory functions.

1.3.3. Customary law

Customary law is a body of rules founding its legitimacy in “tradition”, i.e. in its claim to have been applied for time immemorial. The content of customary law is extremely diverse, possibly changing from village to village. The degree of its internal consistency also varies, ranging from (rare) systematised codes to, more often, “loosely ordered...repertoire[s] of norms” (Comaroff and Roberts, 1981, on the Tswana, Botswana).

Customary rules are not static, but continually evolving as a result of diverse factors like cultural interactions, socio-economic change and political processes. In this context, “traditions” are continuously reinvented to back conflicting claims of different social groups (see Ranger, 1983; Chanock, 1985). Under colonialism, for instance, colonial authorities manipulated customary law for their own ends, and compilations of customary rules were often filtrated by male elders and thus followed men-biased interpretations of customary law (e.g. on Kenya, Mackenzie, 1998; on India, Agarwal, 1994). As for South Africa, what is referred to as customary law is a mixture of “tradition” and colonial and apartheid legislation (Native Administration Act 1927, Bantu Authorities Act 1951, and subsequent laws and regulations); under this legislation, tribal authorities were salaried government officials, subject to the State President (who could appoint and depose chiefs and modify their powers).

While the legal status of customary law varies from country to country (see below, section 1.3.5), its application remains widespread in the rural areas of Africa and Asia-Pacific and in Latin American regions inhabited by indigenous communities. This affects women’s rights, particularly in the areas of family relations and succession, of access to natural resources, of labour obligations on family fields, and of access to traditional justice.

Customary legal systems may contain rules that disadvantage women. For instance, under most African customary land tenure systems, women have only secondary use rights to land, i.e. they gain access to land only through husbands and male relatives. Moreover, many customary inheritance systems limit or even exclude women’s succession rights. However, given the great diversity of customary law, generalisations should be avoided. First, considerable differences exist between patrilineal and matrilineal systems. Broadly speaking, under patrilineal succession systems property devolves through the male line (from father to son), and wives and daughters usually have no inheritance rights. Under matrilineal systems, property is traced through the mother’s line but generally owned and controlled by men (i.e. sons inherit land from their mother’s male relatives); however, women tend to have greater rights than under patrilineal systems, for instance enjoying stronger cultivation rights and being able to obtain gifts from their fathers (Lastarria-Cornhiel, 1997). Second, in some cases customary law grants to women rights that are not recognized under statutory law. Third, customary law is usually fluid, open to different interpretations, including on the extent of women’s rights. Finally, as customary law evolves, so do its provisions affecting women’s rights. Therefore, in the words of an author, “tradition is full of good things for women, and bad things for women. Some of the things that were “good” for women in the past, may not be so “good” for women today. Aspects of tradition may be “good” for some women, but “bad” for other women. Some of the things that are “good” for women are at the same time also “bad” for these same women” (Armstrong, 2000).

1.3.4. Norms of a religious origin

The legal status of rural women is also affected by norms founding their legitimacy in religion. These norms are applied in many countries, because they are either recognized in legislation or followed in practice, and may be intertwined with local customary norms. Norms of religious origin govern matters such as family relations and inheritance, and may therefore affect the existence or exercise of women’s rights. For the purposes of this study, norms of religious origin are examined only in so far as incorporated or referred to by statutory law.

1.3.5. The interaction between the different levels of law

The different bodies of norms affecting women’s rights are not isolated, but are intertwined in dynamic interaction processes. Conflicting norms of statutory and customary law may coexist in the same territory (“legal pluralism”), and support competing claims of different social groups. Statutory and customary rules violating constitutional and international human rights norms have been struck down by courts. Women’s legal status is often the outcome of the interplay between these different bodies of norms.

The relationship between statutory and customary law is determined by the legal status of customary law within the legal system. This varies across countries, ranging between official recognition and abrogation. Customary law is for instance recognized by national law in Kenya and Fiji. In Kenya, the legal status of customary law was at stake in Otieno v. Ougo and Siranga, in which Kenyan courts held that customary law is formally part of the Kenyan legal system, and must be applied in case of legislative lacuna (High Court, case 4872, 1986; Court of Appeals, 15 May 1987). In some cases, the recognition of customary law is qualified by respect for the fundamental principles enshrined in the Constitution and in legislation, including gender equality (e.g. South Africa, art. 211(3) of the Constitution; Philippines, Civil Code and Indigenous Peoples Rights Act of 1997; Mexico, Agrarian Law of 1992, art. 164)[3]. In yet other cases, statutory norms outlaw customary law (e.g. in most of Francophone Africa), although even in these cases customary law remains widely applied in rural areas.

The relationship between norms of a religious origin and statutory law also raises important issues. First, a trade-off between freedom of religion and women’s rights may arise. In India, several cases dealt with the relationship between freedom of religion and restrictions on bigamy (State of Bombay v. Narasu Appa Mali, AIR [1952] Bombay 1984; Srinivasa v. Saraswati Ammal, AIR [1952] Madras 193; more recently, Sarla Mudgal and Others v. Union of India and Others, 1995, 3 SCC 635). Second, statutory law may incorporate religious norms into family and succession law. For countries encompassing different ethnic or religious groups, this entails a plurality of personal laws and, therefore, a diversification of women’s legal status (e.g. India and Kenya). The incorporation of religious law into statutory law may occur either through codification of religious rules into statutory law (e.g. in India, the Hindu Succession Act) or through legislative renvoi to religious norms (e.g. in India, the Shariat Act).


[1] Note that the de facto discriminatory practices reported in this study (both in the text and in the tables) are only those documented in the literature reviewed, and are thus by no means intended to be exhaustive.
[2] Section 231(4) of the South African Constitution states: “Any international agreement becomes law in the Republic when it is enacted into law by national legislation; but a self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament”. Under this provision, ratified international human rights treaties are directly applicable in South Africa.
[3] Among the countries not directly covered by this study, the 1995 Constitution of Uganda prohibits “laws, cultures, customs or traditions which are against the dignity, welfare or interest of women or which undermine their status” (sec. 33(6)).

Previous Page Top of Page Next Page