Chapter 6: Law and rural women
6.1. The legislation and rural women
6.2 Recommendation regarding legal amendment
Current legislation commonly limits women's capacity and independence in their decision making. This discrimination has a cultural origin which grants men the public-related activities while conceding women the private one; thus men assume the representation of women in the public arena.
In general terms, this aspect is equally applied to women. Nevertheless, for rural women it presents some specific aspects caused mainly by:
a) the fact that most rural women work without receiving salaries impedes their access to protection rules granted to working women in some countries;
b) the right to access land favors men while there are no special considerations for women who are heads of the family;
c) the above makes it difficult for rural women to obtain capital and/or access credit, thereby obstructing their gaining better opportunities in an economic and agricultural-productive aspects (Errázuriz, 1987).
One of the most serious problems in the rural sector is law inefficiency. In this respect, there is a general unawareness of the laws either for both the farmer and the reinforcement officials. Furthermore, customs constitute a parallel rule which reinforce women's subordination (FAO, 1990a). Hence, this is how many people responsible for awarding the land only consider men as heads of the family, even though the agricultural legislation does not stipulate such discrimination. Another common practice which bypasses the legal precept: ''equal work, equal pay" which results in women receiving inferior salaries although performing the same tasks as men (FAO, 1990b).
Upon analyzing the legal situation of rural women in four Latin American countries (Chile, Guatemala, Peru and the Dominican Republic), Alvear (1987) illustrates the same which, although in varying degrees, affects all of the Regional countries. According to the author, discriminatory rules affecting women are not posed in the Constitution of these countries since all of them acknowledge equality among men and women before the Law. However, women's legal discrimination, particularly rural women, is essentially visible in civil law and in a lesser degree in working and agrarian law.
In civil law, although to different extents, provisions applicable to married women and the family are discriminatory in all of the analyzed countries. In Chile, women married into a marriage partnership, most common in the country, acquire a relative incapacity which impedes them to act independently in public affairs. In this marriage, men enjoy authority over their wives and property and they represent and administrate all of the goods in the partnership including any that women might have acquired before marrying. These provisions affect both urban and rural women. The latter cannot execute any contract which concerns land acquisition and neither can they administrate or dispose of land and/or property they had before marrying. The same applies to their access to credits and production supplies.
In Chile, since 1934, there is a norm within the marriage partnership system called "separate property" for married women. This rule implies that partnership marriages in which women are employed or perform any profession, occupation or job, separate from their husband, are considered as marriages with separation of marital property15. Therefore, women are not obliged to share her benefits obtained from such activities. According to Alvear, generally this condition does not apply to rural women for two major reasons: a) the tasks that these women perform are not usually compensated, and b) should they perform any work, it is carried out jointly with their husbands; and, according to the law, such a work must be conducted independently from the husband. If such work is conducted jointly by the couple, then the husband, in charge of the joint property, manages the properties. Furthermore, the husband can ban his wife from working and she is forced to follow him wherever he might decide to live.
15 The separation of marital property can be total or partial. If total, the woman is fully capable of managing it; if partial, she can only manage the property defined for such purpose.
In Chile there is another marriage system: separation of marital property. In this system, women are fully capable of managing their goods and properties since the husband has no authority over her and her property. Nevertheless, the authority of the husband over his wife and her property only applies to this aspect. According to the author, in reality, in the case of rural women, marriages containing the separation of marital property system is not applicable. If a woman were to marry into this system, her husband would hold a series of rights over her: "...she must obey him, must follow him wherever chooses to reside and he may prohibit her from performing any type of work" (op. cit., pg. 151).
In the Dominican Republic, a similar situation occurs: the husband manages the marital property even if the marriage contains a separation of marital property. Additionally, there are other systems: "common", normal, and the "dowry" where the woman supplies a dowry in order to afford the cost incurred in the wedding. The husband manages the property provided as dowry and receives the profits thereof. However, an agreement can be reached with the woman so that she can receive part of the income for her personal expenses.
In Peru, the most common type of marriage corresponds to possessing joint property in marriage with both spouses as representatives. Each spouse manages his/her own property which is divided between them when they separate or divorce. In this way, Peruvian women face no legal obstacles to acquire land or supplies and they are fully capable of executing any type of contract regarding their property. Nevertheless, agrarian legislation denies single or married women to own land since, in order to access land ownership, there has to be a "head of the family" who is considered to be the man.
Guatemala, similar to Peru, bears the same type of joint property marriage as the normal marital system. However, in this case the property is managed by the husband. There is no law impeding married women to acquire land or supplies. However, provisions granting the husband superiority over the wife does cause difficulties. There are some express legal provisions that maintain women's roles as being responsible for domestic tasks and child care, and she could even be forced to stay at home if her husband were to deem necessary.
Regarding labor rights, the legislation of the studied countries have some provisions protecting women in that they prohibit women to perform work under specific conditions; such as, work that is performed at night, dangerous, unhealthy, performed in mines or underground. This may impede women to enter the working arena or at least limits their possibilities in both rural and city areas. In the Dominican Republic, for instance, women cannot perform, among others, ''tasks that require the use of physical strength in mills, moving devices or drive trucks or heavy duty vehicles'' (pg. 163). Obviously, these provisions impede women to conduct jobs that include modern technology and hamper their training for to use the same.
Finally, regarding agrarian rules, the author states that the most common practice is that the ''head of the family" as the beneficiary, a role which has been historically and most commonly conferred to men.
Provisions regarding inheritance rights also discriminate. In Honduras, women can be the beneficiary and be awarded land only if they are single or widowed with children and if their work complies with applicable legal provisions. In Mexico, women receive the "custody" of any right to the land that the son may have until he is 16 unless the widow has no male children or that the husband has made a will in her favor (FAO, 1993d). Women live with their partner in consensual unions must be included since, generally, they have no possibility to inherit any property from their couple even though agricultural activities were performed by both spouses (Alvear, 1987).
Legislators in may countries of this region have considered the problem posed by de facto unions of men and women and have provided legal answers for an extended situation (one must bear in mind that consensual unions are more frequent in Latin America and the Caribbean than in any other region) De facto unions are regulated and acknowledged in Cuba, Guatemala, Mexico (D.F.), Peru and Venezuela. However, in Mexico and Venezuela this provision is voided when a previous marriage exists, thus loosing its effectiveness for many people.
As de facto unions are legally acknowledged, agrarian legislation in Cuba, Mexico and Peru accept that either "partner" may inherit the land. However in Venezuela, despite the legal acknowledgment of de facto unions, the Agrarian Reform Law does not include this situation and, in such event, the woman can have recourse to the Law of Agrarian Shelter. All of this shows that, in some countries, agricultural legislation does not equal civil legislation. In Colombia, although there is no legal acknowledgment of the consensual unions, there are rules regarding this subject: labor laws consider the "partner" as the beneficiary of the retirement right of the assignor (a matter which constituted a win for labor unions); the Agrarian Reform Law also considers the "partner" as having the right to inherit the land should the awardee die (FAO, 1990b).
As stated above, it is very difficult for women to access credits: the policies regarding credit grants are based on the economic solvency of the person applying to such credits and legal provisions for property acquisition make it difficult for rural women to be considered as sound applicants by financial institutions. The only exception is Cuba where women receive equal treatment as men regarding credits by both cooperatives and personal property. In other countries various measures have been taken so as to overcome legal restraints. In Colombia, for instance, an attempt has been made to increase credits destined to rural women, changing mortgage security to the harvest of the fruits obtained from the credit. However, long term credits are still require mortgage securities (FAO, 1990b).
Case studies on the legal situation of rural women conducted in nine Latin American countries (Colombia, Cuba, Chile, El Salvador, Guatemala, Mexico, Peru, Dominican Republic and Venezuela) show that all of these countries have discriminatory legal provisions regarding rural women which must be abolished, thereby providing them with full rights, without regard to their marital status. Countries are also requested to ratify international conventions regarding women' s rights, conducting an evaluation of their legal and practical fulfillment. Likewise, it is recommended to elaborate an abstract of international treaties and agreements so as to spread their contents and scopes. More specifically, the following legislative amendments are proposed (FAO, 1990b):
a) Regarding the husband's authority over his wife and her property established in civil law, those regulations conferring said rights to the husband are proposed for abolishment or amendments. This would translate into the changing of the "head of the family" concept to the "shared direction" of both spouses. The above leads to a revision of customary laws in each country which, sometimes, are even more discriminatory than written law. Said amendments apply particularly to Chile, Guatemala, the Dominican Republic, El Salvador and the Mexican states of Durango, Aguas Calientes, Nueva León, Oaxaca, Guanajeto, Michoacán and Tabasco.
b) Regarding family law, regulations must focus on the fact that "Paternal Rights" are shared by both spouses and do not imply the superiority of the father over the mother, as is the case of Chile, El Salvador and the Dominican Republic. In Cuba, it is recommended to legislate to increase the father's responsibility regarding childbirth, fostering the father's participation, and establish shared maternity leaves, if necessary. This recommendation could be applied to all countries.
c) De Facto Unions: it is convenient that legislation be applied in this regard in those countries where it does not exist, in both civil and labor laws and agrarian legislation.
d) Family Property: this consists of assigning a home and/or land for the family living and nourishment. No embargo can be placed on these properties, as they are nontransferable and inherited. Although there is no statistical information in this respect, when a country's law considers this matter (as does Cuba, Colombia, Guatemala, Mexico, the Dominican Republic and Venezuela) this law is not generally applied in rural areas since property can be mortgaged as a guarantee for requesting credit. This could also be due to ignorance and lack of knowledge. For these countries a study should be conducted which stipulates how the Family Property has been constituted and the data regarding such system's advantages should be communicated. Furthermore, this system is recommended for those families constituted by de facto unions.
e) Inheritance Rights: amendments should be made in order to protect the surviving spouse. This is particularly applicable in the Dominican Republic where the spouse has no inheritance rights and in Colombia where it is suggested to increase the surviving spouse's stake. In El Salvador, rules are proposed for the National Financing Law for Agricultural Land to guarantee insurance for the female spouse which should be entailed in a land adjudication certificate so that no debt is applied on the land received by the woman.
The following rules are suggested for Labor Laws:
a) Prohibitive rules regarding women: in all the countries, except Cuba and Mexico, rules prohibiting women from conducting specified types of work based on the fact that they are weaker and, therefore, incapable of performing certain tasks should be abolished. Furthermore, it would be convenient that in all countries laws be enacted to effectively control labor law enforcement which consider severe fines when they are not applied.
b) Rules that protect maternity: maternity protection rules must be maintained; however, their conception must be changed to "family protection" rules. The above implies, among other things, extending the benefits to all women workers, including a "father's license" so that either the father or mother may make use of the same. Also, it should be recommended to avoid jobs which may damage women's reproduction organs and new law. should be proposed which tend to facilitate women's work without prejudicing child care and attention.
c) Rules regarding women working in agriculture: it is convenient to regulate norms of agriculture-related jobs in all the countries which were studied. This is because of the fact that said jobs are specially derelicts, particularly seasonal workers. It is also recommended to include all rural female workers as beneficiaries of said protection rules, more Specifically women performing temporary tasks. Likewise, the execution of a technical-legal study is recommended. Said study should lead to the forming of rules that protect women, men and children from dangerous effects of the use and abuse of toxic substances in agriculture.
Regarding Agrarian Law, it is recommended that in all countries there be a union of the various agrarian rules into one legal body. Furthermore, primary school must be made compulsory in rural environments and there should be a search made for new ways to acknowledge the productive jobs performed by women including her in the social security services. Specifically, the following is recommended:
a) Access to land: excepting Cuba, the idea of the male head of the family must be eliminated from the legislation considering women as equals before agrarian law.
b) Access to credits: it is suggested that for the countries included, didactic manuals be prepared so as to breed awareness among farmers of all the rules in force related to credit awarding. Also, banking provisions should be incorporated to these manuals, particularly where there are specialized agricultural banks. Said manuals should be published and include information courses regarding their use which should also be translated into indigenous dialects whenever necessary. From a legal point of view, the practical application of said manuals must be studied in order to abolish or adequate some restrictive norms. It is suggested that credit norms require that a portion of credits be granted to women who fulfill the requirements. Furthermore, the existence of a guarantee fund is under study; said fund would help avoid the obstacles women face when attempting to access credits since they do not have guarantees.
One conclusion from the analysis based on recommendations from the studies conducted on the applicable legislation in these countries, could be that, as stated by Alvear (1987), legal discriminations affecting women, both rural and urban, are represented, basically, in the country's civil law. This is sex discrimination which affects other aspects of women's lives. To rural women, this aspect acquires great importance when considering their introduction into the productive sector since said legal discriminations become barriers impeding their access to land and credit, property administration and overall their performance as agricultural producers and/or workers.
In Latin America and the Caribbean there are various, different institutions, both public and private, which include a wide range of ideological origins and purposes but which focus on women. However, this document is not intended to display a complete profile of the institutions operating in the rural environment. Suffice to say that many institutions have contributed to change the life style of many women; however, there is still a long road ahead before goals are met and a real social impact is obtained.
In the majority of the Regional countries studied, government initiatives regarding women have existed for many decades and they mainly focus on health assistance programs, nourishment and on promoting associations for housewives and mothers. Generally, these programs were conducted by the Ministries in charge of health, social welfare or education. Nevertheless, the decade of the woman (1975 -1985) fostered the creation of specific organizations geared to the study and consideration of feminine problems. As a result, currently in almost every country there are public organizations and institutions devoted to these problems. For example, there are offices and departments for women in the Caribbean, Ministries and Secretariats in Latin America (FAO 1992b). These organizations have been modified many times since their creation and such variations are mainly related to government changes and redefinition of their objectives and tasks. Table 17 illustrates the situation that some Latin American countries are currently facing.
According to Ellis P. (1989), in the Caribbean, in those countries possessing a national office for women, as is the case of the Women's Office, said institutions are considered as core elements to address problems related to gender differentiation, and as mechanisms to coordinate different programs tending to improve women's conditions. Also, said institutions act as catalysts between women, women's organizations and the government and therefore they are able to influence and assess government policies. However, to the author, a national agency does not always possess the necessary financial or human resources so as to adequately carry out its responsibilities.
TABLE N° 17 Latin America (9 countries) Government Institutions for Women
Country |
Institution |
Year |
Depending on |
Argentina |
Women's Subsecretary |
1987 |
Health and Social Action Ministry |
Costa Rica |
National Association for Women's and Family Development |
1986 |
Culture and Sports Ministry |
Chile |
National Agency for Women |
1991 |
Planning and Cooperations Ministry |
Ecuador |
National Department for Women |
1986 |
Social Welfare Ministry |
Guatemala |
National Office for Women |
1981 |
Labor and Social Provision Ministry |
Panama |
Women's Department |
1993 |
Labor and Welfare Ministry |
Paraguay |
Women's Secretary |
1992 |
|
Dominican Republic |
General Department for Women's Support |
1982 |
State Secretary of The Presidency |
Uruguay |
National Institute for Women and the Family |
1992 |
Ministry of Education and Culture |
SOURCE:
Institute of Women, Spain - FLASCO, ed. 1993: ''Latin American women statistically speaking. " Volumes correspond to each country.
Information for Argentina: "Women in South America: government support mechanisms." United Nations Children 's Fund, UNICEF. Santiago, Chile, 1988.
These institutions handle rural and urban women's concerns. They have tackled obstacles that rural women face that are related to access to land and credits, technical support and training. They are aware that overcoming these problems is essential to incorporate women to development. In Honduras, for instance, in 1992 certain articles of the Agrarian Reform Law were amended to guarantee women's access to land as a direct beneficiary (Honduras, 1993). In El Salvador, by means of the "New Options" project, many women have received title deeds for homes and farming lots. Also, the beneficiaries of these programs may apply to a national financing program for the construction and improvement of their home (FONAVIPO) (Salvador, 1993). Costa Rica, with the Law for Women's Social Equality, 1990, included women as direct and indirect beneficiaries to land, stipulating in one article that the awarding shall be made to the name of both spouses, should they be married; in the woman's name, if it relates to a de facto union; and to the beneficiary in any other event, either the man or the woman, (Costa Rica, 1993).
Although some policies and programs have been accomplished in order to increase women' s access to production factors, their elaboration and execution pose some difficulties in all the countries (FAO, 1992b):
a) Lack of specific policies to solve women's problems, particularly those related to agricultural and rural development. Also, economic and social macro-policies do not consider this as an important matter.
b) Generally, statistical and planning units do not focus on gender problems; therefore, there are no considerations for these in national plans or in information systems.
c) Generally, there is lack of sensitivity and awareness as to the manner of approaching the above problem within the Ministries of Agriculture and other public institutions. In some cases, a certain hostility has been felt with respect to including this problem. However, there is currently a more receptive atmosphere towards the creation of policies and some initiatives have already been generated; however the lack of a gender perspective has limited them.
Different ministries develop specific programs for women in rural areas and many of them receive technical and/or financial support form international organizations. Explicitly as an example, we could mention some projects recently conducted in some of the Regional countries women's Institute, Spain-FLASCO Chile, ed. 1993. Volumes correspond to each country).
In Panama (1993), the Ministry of Agriculture and Livestock Development is developing a Fostering Program for Youths and Rural women and a Club for Housewives. The latter is focused on strengthening rural feminine organizations and fostering profitable productive activities.
In the Dominican Republic (1989), the Secretary of Agriculture is conducting a trial program for Productive Projects for Rural Women. The Dominican Agricultural Institute is developing a project called Promotion of Mothers, Associations in shantytowns on State-owned lands.
In Paraguay (1993), the Women's Support Department from the Technical Support Division, Agriculture and Livestock Extension Service from the Ministry of Agriculture and Livestock, is developing the following projects (supported by international organizations): Women's Roles in Rural Development; Fostering of Women's Productive Activities (supported by UNIFEM); Care and Nourishment of Mothers and Children (supported by UNICEF). The National Welfare Office is conducting the Human Development Program and one of its main focus points is the promotion of women in the rural area (supported by the UN World Food Program, WFP).
In Ecuador (1991), the Ministry of Agriculture and Livestock is developing the following projects (supported by the National Program of Rural Development from the Rural Women's Department): "Integral Development of Rural Women"; "Participation of Rural Women in Community Developing Projects" and "Appropriate Technology for Rural Women.'
In Costa Rica, since 1990, the Ministry of Education has been developing the project "Education-work-production for the feminine population in rural and marginally urban areas of Costa Rica." This project is financed by Holland and relies on the technical advise of the International Work Organization, IWO.
In Guatemala (1991), the Ministry of Agriculture and Nourishment offers credits and financing for productive projects such as training for home economics teachers. Since 1990, the National Institute of Agriculture Transformation included the Integral Development Department for Rural Women.
Finally, in Chile, the Agriculture and Livestock Development Institute (INDAP) from the Ministry of Agriculture has developed, among others, the following projects: "Support of Productive Activities of Rural Women" (by the INDAP and the IICA); "Training for Organizations of Rural Women" and "Workshops on Teaching and Training Rural Women" (by the INDAP and the Foundation for Women's Promotion and Development, PRODEMU) (Barría, ed. 1993).
These private, nonprofit organizations called non-governmental organizations have expanded and diversified their functions over recent decades. In addition to their providing humanitarian assistance and fostering social welfare, they currently encompass technical and economic aspects such as environment regulations, analysis and support of policies and alternate marketing. In rural areas, these national and international organization provide important contributions to development projects by means of technical assistance and financial transfer (FAO, 1994).
These organizations also conduct significant tasks in feminine promotion in rural and urban areas in the Regional countries. Nevertheless, despite their direct action in various areas concerning the population, they bear a limited influence over the creation of public policies. Considering the work and experience of such organizations, the collaboration between them and governments could and should constitute an important tool to develop initiatives favoring rural women. (FAO, 1992b).
Although these nonprofit organizations play an important role when approaching rural women's problems, their work load is even heavier regarding urban women. In Ecuador, for instance, in 1992 there were 65 non-governmental organizations registered; of which 14 covered rural affairs, 2 were specifically devoted to women and the others handled other areas but did include programs for women. In Costa Rica, in 1993 there were 34 non-governmental organizations; 4 were dedicated to rural aspects and only one specialized in women's concerns. In Guatemala, in 1991 there were 24 organizations for women's matters; 17 of these organizations were devoted to urban and rural aspects; 5 worked with urban affairs and only 2 were dedicated exclusively to rural areas Women's Institute, Spain-FLASCO Chile, ed. 1993. Volumes correspond to each country).
In Bolivia there are 136 institutions assigned to women concerns: 78% correspond to non-governmental organizations; 24% are dedicated to rural area aspects, 45% dedicate to both rural or urban concerns and 31% dedicate exclusively to urban concerns. Their action. are focused on health and educational aspects, while the agricultural and livestock sector comprises only 14% (Bolivia, 1993).
One can see that the privileged areas of concern for these organizations are centered in the urban arena, despite the importance that the rural population exert in many of them (the latter representing 40% of the total amount). To exemplify the aforementioned, one may recall some factors. It must be borne in mind that, generally, the projects conducted by these organizations depend on external financing. It has been even said that, as a rule, international organizations are informed of actions taken by these organizations; however, they must update the concept and institutional mechanisms so as to collaborate with them in a more comprehensive manner (FAO, 1994). Although no precise information is available, it could be assumed that most international agencies granting financing favor those projects focused on urban areas. This phenomenon is also perceived in public policies adopted by the countries of this region.
In most of these Regional countries, women have been incorporated, one way or another, in global development programs through various ministries and government institutions, particularly those created to handle women's concerns. Furthermore, non-governmental organizations have conducted, and still conduct, important activities in this respect. However, it would be impossible to assume that only one social worker could respond to the needs of all the women in this region: there is no organization with enough human and financial resources which could do this. In this respect, in order to incorporate women to global processes and outline efficient policies, joint efforts are needed among national mechanisms for women, the ministries in charge of specific aspects - particularly education, work and health - non-governmental organizations, women's movements, centers devoted to conducting studies, universities, etc. (CEPAL/CELADE, 1993).
In general, the legislation in all the Regional countries entails discriminatory provisions with regarding women that are not contemplated in the respective Constitutions acknowledging equality between men and women. These discriminations appear in specific areas of the law, more specifically in the Civil and Labor Laws as well as agrarian regulations.
Discrimination towards women within the legislation affects rural and urban women in the same manner, yet for rural women it adopts special characteristics. Discrimination of rural women is mainly related to the type of productive activity in which they are inserted which impedes their benefiting from protection norms granted in some countries as well as having access to land.
If we include all of those provisions related to the ownership and administration of the property in marriage, rural women have difficulty obtaining their own capital which excludes them from the possibility of opening credits. This situation also limits their opportunities to improve their performance as agriculture producers.
Therefore, some countries have enacted, or are thinking of introducing, some amendments to their respective legislation, particularly with respect to women's accessing land and credits.
In rural areas, there is an relevant unawareness of the law by both the workers and employees in charge of enforcing them. In such circumstances, regional habits constitute a parallel regulation which reinforce women's subordination. Due to this fact, future legal changes should include a broad communication in rural communities and intensive training programs for employees, including gender aspects since, ultimately they directly influence regulation enforcement and fulfillment.
Regarding women's institutionalize, most countries acknowledge the importance of approaching women-related problems, both urban and rural. The above has materialized through the creation of specialized public organizations. Furthermore, various ministries develop productive and assistance projects geared towards rural women. However, there are still difficulties in including "gender" problems in macro-social programs where the lack of information on rural women and the absence of employee training projects play an important role.
Finally, with respect to Non-governmental Organizations, although many of them work with rural women, most of them focus on urban women. Likewise, the urban area, so typical of the Region, surpasses this scope. Nevertheless, considering that these organizations depend considerably on external financing, it would be convenient to establish a closer relationship between these Non-governmental organizations and the external sources of their financing in order to foster initiatives geared towards the improvement of the conditions in which rural women are placed.
