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For or Against Gender Equality? Evaluating the Post-Cold War 'Rule of Law' Reforms in Sub-Saharan Africa

Author: C Nyamu-Musembi
Date: 2005
Size: 50 pages (445 KB)

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Summary

Has the post-Cold War rule of law (ROL) reform agenda in sub-Saharan Africa (SSA) advanced or impeded gender equality? This paper from the United Nations Research Institute for Social Development reviews the ROL programme in SSA. It goes on to compare the priorities of the gender justice movement with initiatives taken by governments and donors. It concludes that gender equality advocates need to challenge market-based justifications for legal arrangements that create or entrench gender inequality.

Funding from international financial institutions and donors has been comparatively small in this sector. However, the influence of these actors is also exerted through the ideas they promote and through conditionality requirements. The primary focus of legal reforms has been to create a framework for interaction between economic agents and the state. This has meant a focus on areas such as property rights, commercial codes and financial liberalisation. Such reforms are perceived as technical matters and there has been little or no public participation.

The priorities of gender justice advocates can be categorised as follows:

• Enactment and full implementation of progressive constitutional reforms: Despite some success, problems persist in this area, such as resistance to the translation of constitutional commitments into concrete laws. It is crucial to try to influence how formal laws interact with societal norms in order to achieve real gains for women.
• Ending institutionalised bias in the administration of justice: Gender justice advocates emphasise that women’s lower literacy levels aggravate language and complexity problems, family courts are underfunded, few women serve as judges, and women have difficulty in securing legal representation.
• The operation of informal justice institutions: There are advantages to these forums, such as accessibility and affordability. However formal institutions ought to oversee their functioning in accordance with national constitutions. These forums tend to exclude women, young people and the poor.
• Stronger guarantees of women’s economic security through reforms to property rights: Reforms have a number of shortcomings, notably: Failure to address landlessness of female-headed households; bureaucratic confusion, inequities in customary practice; and land titling programmes giving sole title to the ‘male head of household’.
• Extending labour regulation and social security to informal sectors and export processing zones (EPZs): EPZs are characterised by legal uncertainty, which leads to a range of arbitrary practices that disadvantage women.
• Absence of gender equality as a key concern in donor agendas: The World Bank has not attempted to advance gender equality through its lending in this sector. However it has set up an Africa Gender and Law programme.

The priority given to market-oriented reforms means that other goals such as equality and redistribution may be sidelined. This has impacts on gender relations as it means failing to address inequities resulting from legal arrangements.

• This climate makes it easy for the promotion of gender equality to be perceived as in conflict with development goals and priorities. Even where governments profess commitment to these goals, this tends not to be reflected in spending priorities.
• Gender justice advocates should work to legitimise an approach to the ROL agenda that evolves in response to the needs and entitlements of the people to be served by laws and institutions.
• It is essential that gender justice advocates mount a more direct challenge to market-based justifications for legal arrangements that reinforce or create gender inequality. This is because any moral consensus on the ‘rightness’ of equality as a social goal is being eroded, and market-based reforms are being justified in the language of rights.

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Source: Nyamu-Musembi, C., 2005, 'For or Against Gender Equality? Evaluating the Post-Cold War 'Rule of Law' Reforms in Sub-Saharan Africa', United Nations Research Institute for Social Development, Geneva