Africa – Labor, Land, & Women’s Rights in Africa
Author: Womens UN Report Network
Date: October 30, 2006
Labor, Land, and Women’s Rights in Africa: Challenges
for the New Protocol on the Rights of Women
Rachel Rebouché[*]
I. Introduction[1]
Recent developments illustrate an increasing awareness of the status of
women’s rights in Africa.[2] This awareness is reflected in the Constitutive Act of the
African Union (“Constitutive Act”),[3] and, more significantly, in the 2003 adoption of an additional
Protocol to the African Charter on Human and Peoples’ Rights (“African
Charter”)[4] on the Rights of Women in Africa.[5] Thirty African states have signed the Protocol on Women’s
Rights (“Protocol”) and, as recently as October 26, 2005, Togo became the
fifteenth nation to ratify the Protocol—the last ratification necessary to enter
the Protocol into force.[6]
As indicated by the drafting process, the Protocol models the structure and
the presumptions underlying the African Charter and the United Nations
Convention on the Elimination of All Forms of Discrimination Against Women
(“CEDAW”).[7] The Protocol takes the broad view that the economic
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and social well-being of women is contingent on rights to equality, health,
education, and political participation in economic, electoral, and customary
institutions. The Protocol could serve as a blueprint for African governments,
engaged in revising their national constitutions and in passing new equality
legislation, to incorporate a more fulsome recognition of women’s rights in
these documents.
Borrowing from CEDAW and other international documents, however, may benefit
some provisions in the Protocol more than others. Labor rights in the Protocol
are framed by the rights to equal pay, to freedom from harassment in the
workplace, and to equal opportunity for securing benefits and promotions.
Property rights, as in CEDAW, are dispersed throughout the articles of the
Protocol and primarily address rights to ownership and to inheritance.
Although these protections are important, the Protocol missed an opportunity
to redefine labor in the context of women’s exclusion from land. In Kenya,
economic resources are tied to rights of property ownership and to access to
land for subsistence and trade farming. The Protocol’s labor and property rights
perpetuate a division between “informal” and “formal” employment without
addressing the ways in which African women’s work may be undervalued or
underreported. While the Protocol makes constructive references to rights in the
“informal sector” and women’s “economic activities,” it does not tie these
rights to land usage or rights to be free from discriminatory customs.[8] These definitional and conceptual shortcomings are coupled
with enforcement problems reflected in the Protocol’s regional counterpart, the
African Charter, and its international counterpart, CEDAW. Unless the Protocol
is interpreted in a manner that addresses these concerns, it may only have a
marginal impact on the current human rights obligations in the areas of labor
and land and provide no new means or new reasons for enforcing the obligations
that already exist in these areas.
II. Women’s Rights and Human Rights Under
the African Union
Legal instruments of the African system largely ignored women’s rights until
recent years.[9] The 1963 Charter of the Organization of African Unity (“OAU”)
made no mention of women.[10] African nations designed the region’s primary human rights
document—the African Charter—in 1981 to protect state sovereignty.[11] The African Charter references women only twice: Article 2
includes sex in a broad non-discrimination clause and Article 18(3) requires
states to eliminate “every discrimination against women and also ensure the
protection of the rights of the woman and the child as stipulated in
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international declarations and conventions.”[12] Subsequent African legal instruments continued to frame
women’s rights as rights related to family protection rather than to gender
equality.[13] As will be discussed further, grouping the rights of “the
woman” and “the child” together in legal instruments mirrors the approach of
Kenyan employment law that protects “women and juveniles” in industrial work
places.[14] Even though many African nations had already signed CEDAW,[15] the Protocol sought to address this paternalism more
particularly by seeking to strengthen women’s control over their role as child
bearers and the role they play in their communities as a whole.[16] However, in seeking to loosen the constraints that custom
often imposes on women, the Protocol takes an approach that seems focused more
on “filling the gaps” in the African Charter (and, in some ways, within CEDAW)
than on addressing the complexities more contemporarily understood to affect the
economic position of women.
A. The African Union and Women’s
Rights
The African Union’s (“AU”) foundation treaty, the Constitutive Act, included
the “promotion of gender equality” as a core principle of the new Union.[17] In support of this principle, the AU created the Women’s
Unit within the AU Secretariat. In addition, the AU focused on the position of
women as connected to development issues. The AU’s development program, the New
Partnership for Africa’s Development (“NEPAD”), refers to women’s rights in its
mission statement and cites promoting gender equality as one of its primary
objectives.[18]
But the generality of NEPAD’s promises is similar to the AU’s rhetoric
regarding women’s rights: the AU fails to support or adequately fund its women’s
rights initiatives.[19] Enforcement mechanisms, such as the state-reporting system
(whereby states make oral reports before the African Commission, the body that
monitors the African Charter) and the judicial system (where cases are brought
before the African Commission), are not widely used to promote or protect the
rights of women.[20]
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B. The Process and Purpose of Drafting
the Protocol
Non-governmental organizations (“NGOs”), such as the Women in Law and
Development in Africa (“WILDAF”) and the African Centre for Democracy and Human
Rights Studies (“ACDHRS”), sought to address these problems by lobbying for a
legally binding instrument that would provide an alternative, stronger platform
for women’s rights. In July 1995, the Assembly of Heads of State and Government
agreed to consider adopting a Protocol to the African Charter and appointed
experts from the African Commission to draft the Protocol.[21] Commissioners, as well as a few NGO representatives,
prepared a Draft Protocol in 1997.[22] After comments from the AU, the African Commission produced
a final document in September 2000, and the Second African Union Summit adopted
the Protocol in July 2003.[23]
Despite the Protocol’s roots as an activist campaign, the African Commission
did not widely consult other African organizations in the drafting process.
Consequently, the Protocol is little known outside of the small cadre of
organizations that lobbied for its creation.[24] The ability of activists to use the Protocol as a tool for
African women is, thus, compromised by their lack of information about the
document. This, in turn, may weaken the ability of local groups to use the
Protocol in ways specific to their communities’ needs.
More importantly, the closed drafting process was at odds with the two major
purposes of the Protocol. The first aim of the Protocol was to create an
Africa-specific instrument for women’s rights under the African Charter. The
African Commission noted that “the African Charter [as the] sole juridical
instrument at the regional level in charge of promotion and protection of human
rights does not offer enough [ ] specific guarantees as regards women’s rights
in Africa.”[25] The second aim of the Protocol was to consolidate existing
international standards and “to allow African governments to fulfil the
international commitments [to which] they have subscribed.”[26] The problem is that the Protocol itself does not delineate
how these two objectives can be accomplished by one instrument. In the context
of land and employment rights, exemplified by events in Kenya, international
documents like CEDAW may not adequately address the ways in which African women
seek income through farming and trade. As will be discussed below, the
discrimination that African
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women face in the informal sector is perpetuated by the link between law and
custom, a complexity which the Protocol seems to fail to address.
III. Employment Discrimination and Land
Rights
The definition of employment at the most general level—an activity for which
one receives payment[27]—needs some elaboration in the African context. Employment
for women in Africa is characterized by subsistence and small-scale farming, and
their participation in informal trade is connected to agriculture, as opposed to
what might be normally understood as paid labor. This “unpaid” work is typically
tied to women’s duties as mothers and wives, and to their community and familial
relationships. African women’s agricultural labor, including subsistence and
small-scale farming, will be referred to as “informal” labor and is
distinguished from formal or salaried/contractual work. It is in this “informal”
labor context that African human rights instruments, of the kind that the
Protocol aims to be, could usefully qualify and add to the existing
international obligations of African states by framing labor rights not only in
terms of salaried employment, but also as work in and for the home. Yet the
Protocol adheres to a definition of labor that overly differentiates between
employment and agricultural work. The rights related to employment focus on
equal pay and on freedom from harassment—rights important in the context of a
salaried position but of little consequence for women deriving income from land
or trade. In this regard, the Protocol is limited in its ability to address the
obstacles that women face in developing and owning land and the impact of these
obstacles on women’s ability to sustain a livable wage. Before analyzing the
provisions regarding labor and employment in the Protocol more carefully, it is
useful to explore the context in which many African women perform their
labor.
A. Problems with Underreporting of
Women’s Employment
As expressed by one woman in Ethiopia: “No [East African] woman is
unemployed. Only a few are paid.”[28] Although specific employment patterns diverge across Africa,
regional patterns seem to exist: 80% of African women do agricultural work,[29] which is the mainstay of most East African economies, and
few women perform salaried professional and clerical work.[30] Sub-Saharan African countries, like Kenya, reflect similar
employment patterns: women are largely excluded from formal, paid employment and
they consti-
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tute almost half of the agricultural workforce[31] and 70% to 80% of all subsistence farmers.[32] The chief reasons cited for women’s exclusion from the
formal sector are lack of education,[33] poor mobility, restrictions on reproductive choice, and
workplace discrimination.[34]
The ways in which labor is described may exclude and undervalue work in the
informal sector—characterized by small-scale trade, domestic services, and
craftwork.[35] National labor censuses and studies by the International
Labor Organization (“ILO”) routinely underestimate the contribution of women to
the work force: “official and unofficial estimates of the female labour force in
Africa are highly suspect and in many instances hardly believable.”[36] Factors identified by Richard Anker as contributing to an
under-inclusive defini-tion of “work” are poorly timed research that does not
take into account the seasonal and agricultural nature of women’s work, the use
of a minimum hours criterion, the focus on finding the “main” labor source when
women engage in several forms of labor (including household labor), and problems
in training researchers to be sensitive to divergent cultural practices.[37]
One means of addressing Anker’s findings is to define, and, thus, measure,
labor in ways that capture the timing and the scope of women’s work. Although
the definition of labor is becoming broader, researchers continue to fail to ask
what kinds of work women are doing and how value should be ascribed to that
work.[38] More particularly, researchers struggle to gauge accurately
what impact domestic contributions through subsistence farming, trade, and
manufacturing crafts for the home have on family income and national economy.[39] Luisella Goldschmidt-Clermont suggests that researchers
measure the value of return of women’s agricultural and domestic labor in terms
of income, products, or other tangible goods for the household.[40]
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B. Agriculture as Employment
Research into the practices of Sub-Saharan women shows that most derive
income by “produc[ing] directly a proportion of their required consumption good
. . . between crops grown for sale and self provisioning.”[41] This small-scale farming is a combination of subsistence
farming and farming for profit. For African women working in the informal,
agricultural sector, their labor shifts with the needs of the season and is
often temporary and underpaid. As reported in 1991, in twenty-six African
countries, between 80% and 97.8% of all economically active women worked in
agriculture.[42]
The sex-specific roles of many African familial traditions permeate how
agricultural work performed by women is valued. The types of farming that are
considered culturally valuable, like farming from larger plots of land primarily
for market, is performed largely by men, whereas small-scale or family-based
subsistence farming, comprising most of East African farming, is undervalued and
done by women.[43] Women often “retain a very substantial responsibility for a
wide variety of domestic tasks” and “are increasingly to be found working for
their neighbours in return for food rather than wages.”[44] Researchers have attributed the sex segregation of
agricultural work to the “complex set of rights that household members have in
relation to assets and labour, as well as to income and subsistence.”[45] Women’s work is often seen as an obligation owed to the
family, not as value created for the family. Research shows that most of a
woman’s income goes toward family expenditures, while up to ninety percent of a
man’s income is spent for himself.[46]
Considerations of cultural practice are also important because they are one
of the key reasons for women’s lack of control over agricultural resources. In
its 2003 report to the Kenyan government, the CEDAW Committee noted,
“discriminatory customs and traditional practices remain prevalent in rural
areas, thus preventing women from inheriting or acquiring ownership of land.”[47] There is a stark contrast between women’s lack of land
ownership and their contributions to land development. For example, in Uganda,
women comprise 70% to 80% of the agricultural work force, and contribute 80% of
food production, yet own only 7% of the land.[48]
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IV. National Legal Frameworks: Kenya as
an Example
Problems of underreporting and undervaluing the majority of work performed by
women are as prevalent in Kenya as they are elsewhere in Africa. The role of
family and culture is a powerful influence on the public recognition of Kenyan
women’s economic rights. Women constitute 75% of Kenya’s agricultural work
force, farming mostly for subsistence.[49] However, only 1% of women in Kenya own the land on which
they work.[50]
Kenya’s employment laws and anti-discrimination measures are based on the
common law. As such, they provide for equal pay and equal access but not for
greater agricultural autonomy or protection for those women self-employed in
trade or craft industries. This is particularly worrisome because Kenyan women’s
responsibility for small-scale farming is increasing as more men move to urban
areas in search of paid employment.[51] This migration pattern means greater responsibility and less
security for women because they will no longer have the contribution of income
from their husbands if their husbands move in search of work. As will be shown,
the combination of Kenyan statutory law, constitutional rights, and customary
law further complicates issues related to women’s employment and land
rights.
A. The Employment Act
Employment in Kenya is governed by the Employment Act of 1984.[52] The Employment Act does not include an anti-discrimination
provision and deals mostly with minimum wage standards, maximum hour
requirements, and workplace safety measures. Part IV of the Employment Act
governs employment of “women and juveniles” in the “industrial sector,” defined
as mines, factories, construction work, and transport of passengers by road,
rail, or inland waterway.[53] The relevant provisions prohibit women from working “between
the hours of 6:30 p.m. and 6:30 a.m. in an industrial undertaking” except in
“cases of emergencies which could not have been controlled or foreseen . . .
.”[54] None of these restrictions apply to families working
together, unless the employment is “by its nature or the circumstances . . .
dangerous to the life, health or morals of the persons employed therein . . .
.”[55] Women are also mentioned in Part II of the Employment Act,
“Conditions of Employment,” which guarantees women two months maternity leave,
“provided
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that a woman who has taken . . . leave [ ] forfeit[s] her annual leave in
that year.”[56]
As in Article 18(3) of the African Charter, women’s rights in Kenya’s
Employment Act are connected to children’s rights or family responsibilities,
emphasizing that women’s rights continue to be associated with protections for
the family. The Employment Act does not address women’s rights in informal
employment. In light of these deficiencies, the Kenyan Government appointed a
task force in 2001 to review Kenya’s labor laws and to make recommendations for
revisions to the Employment Act.[57] Proposed changes included adding anti-discrimination and
equal pay for equal work provisions, treating sexual harassment as an allegation
of misconduct subject to disciplinary action, and shifting the burden of proof
to the employer in allegations of unfair dismissal.[58] These reforms speak to sexual harassment and pay equity, but
they do not address employment that is not salaried or contractual. For example,
in Kenya’s Rift Valley, local flower farmers, who are primarily women, would not
receive the benefit of most labor protections under Kenya’s Employment Act
because their work is seasonal and not contractual. As a consequence, it is
difficult for these women to contest their wages and to challenge poor working
conditions, which includes exposure to pesticides and other dangerous
chemicals.[59]
B. Constitutional Rights and
Reform
The Kenyan Constitution, ostensibly, protects women from discrimination where
the Employment Act does not. The non-discrimination statement in the Kenyan
Constitution resembles the non-discrimination statements in most modern
constitutions. Article 70 states that “every person in Kenya is entitled to the
fundamental rights and freedoms of the individual,” whatever the person’s
“sex.”[60] Article 82 further states that “no law shall make any
provision that is discriminatory either of itself or in its effect,” defining
discrimination as “affording different treatment to different persons
attributable wholly or mainly to their respective descriptions by . . . sex
whereby persons of one such description are subjected to disabilities or
restrictions to which persons of another description are not.”[61] In addressing the discriminatory “effect[s]” of laws, the
Kenyan Constitution includes a disparate impact standard, a powerful tool for
challenging employment practices that burden groups disproportionately. The
Kenyan High Court recently allowed a
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woman to bring a case, under the Constitution’s equality provisions, against
an employer who dismissed her after learning that she was HIV positive.[62]
But the Constitution’s non-discrimination provision is extremely limited
because it does not apply to “adoption, marriage, divorce, burial, devolution of
property on death or other matters of personal law” in the application of
customary law.[63] In the case cited above, the same HIV-infected woman, with
Article 82’s sanction, could be legally excluded from inheriting land or from
entering a family occupation. For women in the informal sector, their access to
land is governed by family custom—rights in marriage and rights to
property—where the practices that discriminate against women are personal
laws.
The Kenyan government recognizes problems with its existing constitutional
framework and is currently drafting a new constitution.[64] Activists for women’s rights seek to eliminate the
exceptions to the Kenyan Constitution’s non-discrimination rights and to change
women’s employment and property rights through new constitutional language.[65] The draft non-discrimination statement now prohibits
discrimination based on marital status or pregnancy and recognizes social and
economic rights.[66] Despite work on a new constitution and on a revised
Employment Act, in Kenya, arguments for women’s rights are continually balanced
against arguments for cultural self-determination.[67]
C. Customary Law and Land
Law
Labor rights in paid employment address only a small segment of Kenyan women
because land ownership and usage—although subject to civil statutes—are largely
determined by customary practices. As already noted, because Kenyan women are
overrepresented in agricultural trades, they are most affected by customs that
govern land use.[68] Under customary law, or law particular to tribal
affiliations, women are effectively prevented from owning land.[69] Women’s freedom to use land is inhibited by customary or
tribal laws dictating what crops may be planted. Upon divorce or separation from
their husbands, or upon the death of their husbands, women can be denied
property rights in their land and homes.
Custom remains a powerful force not only because of the inapplicability of
Article 82’s equality and non-discrimination rights to customary law, but also
because national land law has done little to protect women’s property inter-
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ests. Property is categorized as land held in trust by the government, land
owned by the government, or land owned privately. In the last twenty years, the
government sold much of its trust land under a system of registration. Under the
Registered Land Act, the registrant is entitled to absolute ownership, free from
all claims or interests asserted by third parties. Thus, with respect to family
land, registration extinguishes women’s secondary rights to land access and
usage.[70]
Registration is the point where custom and statutes intersect: tradition
caters to men as the registrant because men have typically represented their
families in public affairs. The majority of registered land is thus registered
in men’s names.[71] In order to claim legal ownership, a woman must either
register the family land in her own name or register jointly with her spouse,
which happens rarely.[72] After land is registered in a husband’s name, the husband,
as sole owner of the family land, can sell the property without consulting his
wife and can even eject his wife from the land.[73]
Beyond the registration system, property rights are also interlinked with
marital status and succession.[74] The Married Women’s Property Act of 1882 governs civil or
state marriage in Kenya.[75] Under the Married Women’s Property Act, there is no
presumption that a married couple jointly owns land.[76] However, as established by common law, a woman retains
ownership of property she owned before her marriage. She is also entitled to
property she contributed to during her marriage and to property acquired in part
through her income. However, the current statutory scheme does not explicitly
recognize a woman’s non-monetary, domestic contribution to land, although courts
have been more willing to recognize such contributions.[77] Even if women’s ownership of land is statutorily allowed,
she may be discouraged from asserting this right. An unmarried woman may use her
family’s land (usually held in her father’s name) but may claim no permanent use
or ownership rights to the land.
Kenya’s succession laws were consolidated under the Law of Succession Act,
which follows the common law model of passing property to the surviving
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spouse.[78] However, because Article 82 of the Kenyan Constitution
allows custom to dictate succession, many Kenyan communities continue to use a
patrilineal system of inheritance in which property is passed to the deceased’s
male child(ren) rather then to his wife. If the deceased does not have any male
child-(ren), the deceased’s property is largely treated as if it belonged to an
unmarried man; as a result, a woman who works and uses the land for her and her
family’s livelihoods can be deprived of ownership, and, ultimately, control of
the land at the death of her husband.[79]
V. Promises and Problems: The Protocol,
Labor, and Land
As noted in the discussion of Kenya’s legal framework, writing a new
constitution, revising the Employment Act, and attempting to influence customary
practices are arduous tasks that are not done in concert with each other. These
reform strategies fail to address how women’s exclusion from decision-making in
their families and communities, as well as the status of the informal workforce,
are part of a larger problem. The Protocol may, on one hand, offer more
comprehensive solutions than piecemeal legislative reform. The Protocol includes
protections for women’s rights to economic independence, to own and manage land,
and to equal partnership in making decisions about property, regardless of
marital status. Many of these protections challenge laws and customary practices
regarding land ownership, marriage, divorce, and succession. However, it is not
clear that the Protocol sets out consistent and enforceable standards that will
prove more effective in changing labor and land practices. Closer examination of
the Protocol reveals that it may fall into familiar traps where women’s labor
rights are concerned, despite the fact that it covers a broad range of rights
and makes a valuable contribution to existing human rights standards. First,
rights in informal employment are only referenced briefly in the Protocol,
appearing to be more of an afterthought than an attempt to redefine labor in an
African context.[80] Second, it is not clear how the Protocol’s more abstract
rights to culture and to equality can be used to better protect women’s
interests.[81] Finally, the Protocol relies on enforcement structures that
have already proven inadequate.[82]
A. The Benefits of the Protocol as
Applied to Kenyan Land and Labor
1. Equality and Culture
The Protocol prohibits laws that discriminate both in form and in effect.
Article 2 states that governments “shall combat all forms of discrimination
against
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women through appropriate legislative, institutional and other measures,”[83] including “curbing all forms of discrimination particularly
those harmful practices which endanger the health and general well-being of
women.”[84] Article 2 of the Protocol conflicts with Kenya’s
constitutional sanction of personal and customary laws’ discrimination against
women. Thus, Article 2 could be used to argue that Kenya’s constitutional
exception for discrimination by personal laws needs to be amended to “combat all
forms of discrimination.” If such an amendment were adopted, it could affect the
operation of the Kenyan land registration system which, although not facially
discriminatory, disproportionately favors men as traditional decision-makers in
land matters.
In addition to the more general prohibition against discrimination, the
Protocol also makes clear that custom is not an excuse for policies or practices
that are harmful to women. Article 2(2) imposes a duty on states to “achiev[e]
the elimination of harmful cultural and traditional practices.”[85] Although Kenya’s customary patrilineal inheritance system is
currently not subject to the Kenyan Constitution’s equality provisions,
bestowing a deceased’s land only on his sons would offend the principles
underlying Article 2 of the Protocol. The responsibility of African states to
modify harmful cultural practices is reiterated in Article 5 of the Protocol
which requires that states “prohibit and condemn all forms of harmful practices
which negatively affect the human rights of women and which are contrary to
recognised international standards.”[86] Moreover, the Protocol creates a positive, freestanding
right for women “to live in a positive cultural context and to participate at
all levels in the determination of cultural policies.”[87] For Kenya, this would require a review of succession laws
and their impact on women; if those laws are complemented by discriminatory,
customary practices, the Protocol suggests that the Kenyan Parliament has a
responsibility to legislate against those customs.
However, the Protocol does not make clear how rights to equality and to
freedom from cultural stereotypes would apply in the labor context. Unlike
rights set out in more specific detail (such as the right to equal wages),[88] Article 5(b) of the Protocol arguably narrows the meaning of
cultural rights by referencing the practice of female genital mutilation
(“FGM”),[89] and, more generally in 5(d), “forms of violence, abuse and
intolerance.”[90] It seems clear from these references that that the Protocol
drafters did not have economic injury in mind when contemplating cultural
rights, but rather, were
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focused on physical or psychological harm. This is apparent in the solution
to harmful practices that Article 5(c) suggests: “support to victims . . .
through basic services” and “counseling as well as vocational training.”[91] Counseling may meet the needs of victims of abuse, but has
little value in helping those hurt financially by customary practices.
2. Employment and Land
Women’s economic rights are mainly addressed in Article 13 of the Protocol.
Economic rights are described as rights to “equal opportunities in work and
career advancement and other economic opportunities.”[92] The Protocol focuses mainly on rights in the formal sector,
such as rights to equal pay, to benefits, and to freedom from sexual harassment.
Article 13, however, takes a more innovative approach to employment rights by
referencing the value of women’s work in the home[93] and in the informal sector.[94] Article 13’s requirement that states “take the necessary
measures” and “create conditions to promote and support” informal trades and
domestic labor at least recognizes the ways in which women’s economic well-being
and their work in the informal sector are related.
Although Article 13 contemplates “protection and social insurance for women
working in the informal sector”[95] and recognition of “economic value of the work of women in
the home,”[96] it deals primarily with state duties regarding “equal
opportunities in work and career advancement and other economic
opportunities.”[97] The focus of the article is clearly on women’s equality in
salaried employment, with rights to “equality of access to employment,” “equal
remuneration,” and “transparency in recruitment, promotion and dismissal” listed
first and constituting the majority of the text of Article 13.[98] There is little reference to the relationship between
women’s income and their rights to property. Had the nexus between land rights
and income been a primary concern, Article 13 would have spelled out more rights
for informal workers—such as a right to full possession of land after an
enumerated number of years worked on the land, or a right to a portion of the
income derived from land, or a right to safe working conditions for domestic or
home laborers—rather than focusing on the rights to freedom from sexual
harassment and to equal pay. In fact, earlier versions of the Protocol did not
even give explicit protection to contractual rights or to the administration of
prop-
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erty.[99] The rights for elderly women and women with disabilities
include a provision for “access to employment and professional [and for women
with disabilities, “vocational”] training,” but not for economic development in
the informal sector. The Protocol’s lack of focus on the rights of informal
workers is disappointing given the unambiguous research, discussed in previous
sections, indicating that African women work primarily in agriculture and that
their work is crucial to national economies.
Article 19(c) of the Protocol, concerning women’s rights to a sustainable
environment, may address women’s contributions in the informal sector. Article
19(c) obliges states to take all appropriate measures to “promote women’s access
to and control over productive resources such as land and guarantee their right
to property.”[100] Additionally, under Article 19(f), states must reduce the
“adverse effects of the implementation of trade and economic policies”[101] on women. It is hoped that language such as this will have
a “mainstreaming” effect, forcing states to consider whether their economic and
environmental policies will create greater hardship for women. But additional
language may be needed to reflect and address the extent of women’s
participation in informal markets, tying Article 13 and Article 19 together.
Instead of being treated as an ancillary concern, African women’s income from
land should define and shape their labor and employment rights.
3. Marriage and Succession
Article 6 of the Protocol, addressing women’s rights in marriage, stresses
the right of wives to make decisions in partnership with their husbands. Article
6(j) explains that “during her marriage, a woman shall have the right to acquire
her own property and to administer and manage it freely.”[102] According to Article 7, regarding women’s rights in
divorce, including their right to child custody, “in case of separation, divorce
or annulment of marriage, women and men shall have the right to an equitable
sharing of the joint property deriving from the marriage.”[103] Article 21 of the Protocol guarantees widows “the right to
an equitable share in the inheritance of the property of [their] husband[s],”
“the right to inherit, in equitable shares, their parents’ properties,” and “the
right to continue to live in the matrimonial house,”[104] even upon remarriage.[105]
The Protocol’s inclusion of a woman’s right to “acquire her own property and
to administer and manage it freely” is not new. Women in countries like Kenya,
under the common law and the Married Women’s Property Act, are
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already able to own property. Article 6(j) does not address women’s rights to
use of property because it makes administering and managing property contingent
upon ownership. The use of the term property throughout the article is
indicative of an approach that views property as that which is already owned,
not as land used for subsistence income. As in the employment rights context,
this conception conflicts with findings that show that it is women’s access to
land, both in and out of marriage, that is limited.
Article 7 of the Protocol, addressing women’s rights in divorce, fails to
consider a wife’s domestic contribution to property.[106] Courts in Kenya have been more willing to allow equal
division of property based on a wife’s contribution to the home and rearing of
children.[107] The Protocol, therefore, may fail to elucidate the
standards toward which national courts are currently moving. In addition,
problems with vague language, such as Article 6(e)’s right of women to “choose
their matrimonial regime,”[108] and unexplained methodology, such as using traditional
conceptions of the term “property,” might inhibit effective enforcement of the
Protocol.
B. Enforcing the Protocol
The draft Protocol reflected the structure of the African Charter and
attempted to interpret each article as related to women by using international
standards like those found in CEDAW.[109] If the purpose of the Protocol was to create an “African
CEDAW,” then there should have been more discussion about what an African
approach would look like in light of African women’s experiences. As argued
above, the Protocol does not clearly stake out new and imaginative ground in the
area of employment and income. Instead, it incorporates provisions from the
African Charter and CEDAW without thought as to why some rights are included but
others are not and without thought as to how the Protocol fits together as a
whole. The result may be a structure that lacks consistency.[110] For example, the Protocol, in Article 10, includes a right
to peace that mirrors a similar provision in the African Charter, yet the
Protocol does not substantively consider indigenous rights like the African
Charter does.[111] In other areas, the Protocol adds to existing
international standards.[112] Article 12 of the Protocol includes a “right to education
and training,”[113] whereas CEDAW only refers to rights to “education.”[114] Perhaps this
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inconsistency is due to the ways in which terms in the Protocol vary from
those in CEDAW.[115] The rights in CEDAW are usually phrased as “states parties
shall . . .” and “states parties . . . shall ensure to women, on equal terms
with men, the right . . . .”[116] However, the Protocol adopts a variety of approaches,
framing some provisions as state duties, “states shall ensure . . . ,”[117] and others as positive rights applicable without state
action.[118] An inconsistent approach is noteworthy insofar as it
suggests a lack of vision for actual implementation of the rights of the
Protocol; if states’ obligations under the Protocol are unclear, then debate
will focus on the nature of states’ obligations under the Protocol, rather than
whether states have met the standards of the Protocol.
It also is difficult to determine how the Protocol will supplement existing
methods of enforcement.[119] Now that the Protocol has the requisite number of
signatures for ratification, it will be interpreted by the African
Commission—the same body interpreting the African Charter—and perhaps one day by
the AU Court.[120] The problem, however, is that all African states are
parties to the African Charter but not all states will be party to the Protocol.
This may have unintended consequences: the African Commission or AU Court may
find it unnecessary to use the African Charter to protect women’s rights because
the Protocol exists.[121] But, if the AU Court fails to consider the African Charter
as a women’s rights document, the African Charter’s equality and
anti-discrimination jurisprudence for women might go undeveloped.
Whereas the African Charter and CEDAW allow parties to make specific and
detailed reservations, there is no express provision on reservations in the
Protocol. A number of African states have ratified CEDAW with a long list of
reservations.[122] It is unlikely that states with extensive reservations
under CEDAW would commit to the Protocol without exception. Some African states
already registered objections to certain provisions of the Protocol at
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the drafting meetings.[123] This seems like a fundamental problem in the Protocol:
states that would normally object to some provisions of the Protocol do not have
the means to do so. Such a limitation on states may lead to a wholesale
rejection of the document by countries that do not agree with a set of the
Protocol’s provisions.
The Protocol might add to states’ monitoring duties by including a provision
related to compliance by national law enforcement. Article 25 guarantees an
appropriate remedy for violations of the Protocol: “State parties shall
undertake to: (a) provide for appropriate remedies to any woman whose rights or
freedoms, as herein recognised, have been violated; (b) ensure that such
remedies are determined by competent judicial, administrative or legislative
authorities, or by any other competent authority provided for by law.”[124] This provision is promising because it pressures parties
to make the rights under the Protocol effective in national courts. The utility
of the rights in the Protocol, however, remains uncertain.
Despite problems with incorporating a sufficient enforcement mechanism in the
Protocol, reform efforts continue to focus on the need of African states to
incorporate international duties under CEDAW. The CEDAW Committee stated that
any new Kenyan Constitution “should provide for the applicability of
international conventions ratified by the State party,” such as the
incorporation of CEDAW into domestic law.[125] Likewise, the World Summit for Social Development
encouraged ratification and full implementation of CEDAW in East Africa.[126] While the value of ratifying documents like CEDAW
is not at issue here, for the purposes of this discussion it is worth noting
that problems arise when activists focus all their energies on adopting these
documents without shoring up gaps in how these documents address more localized
concerns.
The Protocol may not adequately comprehend how employment is experienced in
East Africa because it does not address the complexity of women’s identity.
Whereas CEDAW covers a broad range of issues, it does not deal with how sources
of oppression, such as racism, colonialism, and classism overlap with sexism.[127] For example, CEDAW (and the Protocol) set forth general
guarantees for promoting equality and reducing cultural stereotypes as well as
more specific rights in the workplace. However, to revise the common law basis
by which labor is defined (such as by salaried employment) and to change the
property practices so that women have better access to land ownership means
re-conceptualizing the manner in which the private and public
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elements of women’s lives intersect. This is not to say that treaties like
CEDAW have not been instrumental in helping advance a vision of equality that is
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