Over the past century, and especially after the International Bill of Rights for Women was adopted by the UN General Assembly in 1981, women worldwide have gained substantial legal rights (Tertilt et al. 2023). Numerous studies suggest that expanding these legal rights increases women’s power in the household, causing a dynamic towards decreased fertility and more education, which in turn promote economic development (e.g. Doepke and Tertilt 2008, Weiss et al. 2022).
There are, however, over 80 countries – home to the majority of the world’s population – where the gains in legal rights for women have not resulted in comparable benefits in economic and social life. The reason is the prevalence of customary justice systems that do not recognise this legal progress and leave women without protections in inheritance, property, labour, and family matters (Papaioannou and Michalopoulos 2013).
In this column, we provide some evidence of the gap in women’s rights in jurisdictions where customary law prevails. This gap is twofold (Bosio 2023). First, customary law negates evolutions in formal law towards greater women’s rights. Second, in countries where customary law exists alongside statutory law, judges often refer cases to the customary system, thus denying women standing in the courts. The result is an ever-widening gap between formal law and practice.
Progress in legal reform
Hyland et al. (2020) introduce the World Bank’s Women, Business and the Law index as a global measure of legal equality between men and women. The index charts the inequality in legislation that a woman faces as she navigates her working life, from the time she can enter the labour force through retirement. Index scores range from 0 to 100, where a score of 100 implies that there are no legal inequalities between men and women in the areas covered by the index.
The most recent data show that the global average Women, Business and the Law score in 2022 is 77.1 (World Bank 2023), implying that, on average, women around the world have about three-quarters the rights of men when it comes to laws affecting their economic opportunity. At the start of data collection in 1971, women possessed only half of the rights of men, suggesting measurable progress over a half century (Djankov and Goldberg 2021).
Using the Women, Business and the Law index, one can trace the evolution of legal rights for women by country. Figure 1 illustrates this progression for Zimbabwe, where legal change starts to happen after the International Bill of Rights for Women was adopted by the UN General Assembly in 1981. Change continues in steps over two dozen years, only to come to an abrupt stop in 2008, the year Morgan Tsvangirai was appointed prime minister of Zimbabwe (Sinha and Djankov 2023a).
Figure 1 Gender legal reforms in Zimbabwe, 1971–2023
Note: WBL index stands for Women, Business and the Law index.
Source: Sinha and Djankov (2023a).
The Women, Business and the Law index can serve only as a starting point of analysis on the evolution of legal rights of women. In Hyland et al. (2021), we list several reasons to be sceptical about the relation between a de jure measure of gender equality and actual experience, especially in developing countries. A common finding in the literature is that deeply entrenched social norms render legal reforms ineffective. Holden and Chaudhary (2013) and Ahmad et al. (2016) find that despite a legal change, women in Pakistan were not able to claim their entitled inheritances because of factors such as lack of education and forced marriage. Gedzi (2012) highlights a similar result in Ghana, where reforms to inheritance laws led to few positive changes in women’s inheritance.
The prevalence of customary law
Legal pluralism is the issue that comes up most frequently when studying legal reform of women’s rights in Africa (Djurfeldt 2020). Ali et al. (2014) note that the coexistence of customary and formal law can lead to a situation in which formal laws are disregarded if informal codes are less costly to execute, as is often the case. Reversion to customary courts, headed by village elders, leads to resolutions that favour men. Women’s reluctance to resort to formal courts is also the subject of several studies. Vatuk (2013), for example, notes that victims of domestic violence and other kinds of marital dissonance may not even consider turning to the state for support.
African jurisdictions are likely to display a larger gap between law on the books and actual practices than most other economies, as customary law has long coexisted with formal law, particularly in property, inheritance and family disputes (Bennett 1981, Schmidt 1990). This gap is not just a manifestation of antiquated practices. As recently as 2016, Supreme Court judges’ decisions in Zimbabwe have upheld customary law over formal law in inheritance matters (Sinha and Djankov 2023a). Similar decisions by the highest judicial (Supreme Court) or political (President’s office) authority have been taken in Burundi and Zambia (Sinha and Djankov 2023b, Su and Djankov 2023). Beyond African countries, customary law is widespread in the Middle East, the Pacific Islands and South Asia (Djurfeldt 2020), suggesting that a similar gap between law and practice may be present there as well.
Still, there is some evidence linking specific changes to the law with better outcomes for women. Agarwal (2003) documents a link between women’s land rights and their possibility of leaving a violent spouse. Deininger et al. (2013) show that the reform of India’s Hindu Succession Act increased daughters’ likelihood of inheriting land. Reforms to the Succession Law in Rwanda made it more likely for women to leave their marriages while keeping their permanent rights to land and increased their ability to resist the customary practice of polygamy (Daley et al. 2010). Ali et al. (2014) find that formalisation of land rights in Rwanda increased women’s investment in soil conservation.
This evidence is, however, overwhelmed by case studies demonstrating that changes in the formal law do not affect economic and social outcomes for women. This gap is twofold (Bosio 2023). First, customary law negates evolutions in formal law towards greater women’s rights. Second, in dual systems where customary law exists alongside statutory law, judges often refer cases to the customary system, thus denying women standing in the courts. The result is an ever-widening gap between formal law and practice.
The example of Zimbabwe
Legal change towards greater women’s rights was in part due to fortuitous timing: Zimbabwe’s independence was achieved in the middle of the UN’s Decade of Women in the 1980s. These dynamics soon frayed. Towards the end of the decade, the government carried out Operation Clean-up to round up the so-called vagrants in urban areas. Any woman who failed to provide a marriage certificate or proof of employment was detained and sent to a rural resettlement camp (Seidman 1984). These were mostly women who, unable to feed their families through subsistence agriculture on communal lands, had fled in desperation to the cities and settled into informal employment in the years preceding independence. Those detained were humiliated while in custody, and eventually became evicted and ostracised (Ranchod-Nilsson 2006).
Government support for further legal change dwindled, influenced by the widespread concern that greater women’s rights did not correspond to African values. Opposition culminated in Parliament attempting to repeal previous laws in 1999. A further blow was dealt by the Supreme Court’s decision in the Magaya versus Magaya case. After the death of her father in 1997, Vennia Magaya was designated as his heir by a community court in compliance with the formal law and entitled to their family home, being the eldest child. Her younger brother Nakayi appealed to the magistrates’ court which removed Vennia and appointed him as the heir. The dispute went to the Supreme Court, which in 2016 upheld the precedence of customary law that only allows males to inherit family property. In this verdict, the Supreme Court also overruled previous court decisions where the provision for equality based on gender as set out in civil law had been upheld (Majome 2022).
Towards a better understanding of law versus practice
The gap between law and practice has been studied in other areas of development economics, for example in environmental regulation (Duflo et al. 2018) and public procurement (Bosio et al. 2022). In these studies, however, the separation between law and practice is primarily due to the law not being applied by the relevant executive authorities. The case of weakened legal rights of women in jurisdictions with a dominant customary system is more pernicious, as formal law cannot overcome the functioning of customary law and institutions. The clash between these two justice systems within a country negates the domestic legislative progress and the adoption of international conventions.
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