metadata: authors: 0: author: Hallward-Driemeier, Mary
1: author: Hasan, Tazeen
2: author: Rusu, Anca Bogdana
count: World
docna: 0: docna: Women's legal rights over 50 years :
            progress, stagnation or regression ?
docty: Policy Research Working Paper
theme: Analysis of economic growth,Regulation and competition policy,Personal and property rights,Other Private Sector Development,Gender
majtheme: Economic management,Social dev/gender/inclusion,Rule of law,Financial and private sector development
subtopic: Social Policy,Human Rights,Legal Products,Judicial System Reform,Common Property Resource Development,Gender and Development,Legal Reform,Legislation,Regulatory Regimes
teratopic: Law and Development,Health, Nutrition and Population,Gender,Finance and Financial Sector Development
abstracts: cdata!: Using a newly compiled database of
            women's property rights and legal capacity covering 100
            countries over 50 years, this paper analyzes the triggers
            and barriers to reform. The database documents gender gaps
            in the ability to access and own assets, to sign legal
            documents in one's own name, and to have equality or
            non-discrimination as a guiding principle of the
            country's constitution. Progress in reducing these
            constraints has been dramatic -- half of the constraints
            documented in the 1960s had been removed by 2010. However,
            some sticky areas persist where laws have not changed or
            have even regressed. The paper analyzes potential drivers of
            reforms. A significant finding is that the relationship with
            a country's level of development and the extent of its
            reforms is not straightforward. For the first half of the
            sample, there was no systematic connection; only in the last
            25 years have increases in income been associated with
            higher probabilities for reform, but only in lower-income
            countries. With the remaining constraints as prevalent in
            middle- as low-income countries, increased growth is not
            necessarily going to spark additional reforms. Clearer
            patterns emerge from the momentum created by international
            conventions, such as the Committee to Eliminate All Forms of
            Discrimination against Women (CEDAW), women's political
            representation at the national level, mobilization of
            women's networks, and increasing labor force
            participation in sectors that provide a voice for women,
            which are positive forces for change. Conversely, conflict
            and weak rule of law can entrench a discriminatory status
            quo. And much is at stake; strengthening women's legal
            rights is associated with important development outcomes
            that can benefit society as a whole.
repnme: repnme: Women's legal rights over 50 years :
            progress, stagnation or regression ?
display_title: Women's legal rights over 50
            years : progress, stagnation or regression
listing_relative_url: /research/2013/09/18287629/womens-legal-rights-over-50-years-progress-stagnation-or-regression
topicv3: Justice m1326106 840,Common Law m1326145 2071,Personal Property Rights m1326571 1907,Gender m1327621 615,Discrimination m1505707 3379
publishtoextweb_dt: 2013-09-23T00:00:00Z
historic_topic: Law and Development,Health, Nutrition and Population,Gender,Finance and Financial Sector Development
no_of_pages: 55
model_extractions: WPS6616 Policy Research Working Paper 6616

# Women’s Legal Rights over 50 Years Progress, Stagnation or Regression?

_Mary Hallward-Driemeier Tazeen Hasan Anca Bogdana Rusu_ The World Bank Development Research Group Finance and Private Sector Development Team September 2013
Policy Research Working Paper 6616

# **Abstract**

Using a newly compiled database of women’s property rights and legal capacity covering 100 countries over 50 years, this paper analyzes the triggers and barriers to reform. The database documents gender gaps in the ability to access and own assets, to sign legal documents in one’s own name, and to have equality or nondiscrimination as a guiding principle of the country’s constitution. Progress in reducing these constraints has been dramatic—half of the constraints documented in the 1960s had been removed by 2010. However, some sticky areas persist where laws have not changed or have even regressed. The paper analyzes potential drivers of reforms. A significant finding is that the relationship with a country’s level of development and the extent of its reforms is not straightforward. For the first half of the sample, there was no systematic connection; only in the last 25 years have increases in income been associated with higher probabilities for reform, but only in lower-income countries. With the remaining constraints as prevalent in middle- as low-income countries, increased growth is not necessarily going to spark additional reforms. Clearer patterns emerge from the momentum created by international conventions, such as the Committee to Eliminate All Forms of Discrimination against Women (CEDAW), women’s political representation at the national level, mobilization of women’s networks, and increasing labor force participation in sectors that provide a voice for women, which are positive forces for change. Conversely, conflict and weak rule of law can entrench a discriminatory status quo. And much is at stake; strengthening women’s legal rights is associated with important development outcomes that can benefit society as a whole.

This paper is a product of the Finance and Private Sector Development Team, Development Research Group. It is part of a larger effort by the World Bank to provide open access to its research and make a contribution to development policy discussions around the world. Policy Research Working Papers are also posted on the Web at http://econ.worldbank.org. The authors may be contacted at mhallward@worldbank.org.

_The Policy Research Working Paper Series disseminates the findings of work in progress to encourage the exchange of ideas about development issues. An objective of the series is to get the findings out quickly, even if the presentations are less than fully polished. The papers carry the names of the authors and should be cited accordingly. The findings, interpretations, and conclusions expressed in this paper are entirely those of the authors. They do not necessarily represent the views of the International Bank for Reconstruction and Development/World Bank and its affiliated organizations, or those of the Executive Directors of the World Bank or the governments they represent._ Produced by the Research Support Team
/ Qt, Years of Expanding \ Legal Rights of Women , Around the World
# **Women’s Legal Rights over 50 Years: Progress, Stagnation or Regression?**

<mark>“Life must be lived forward, but it can only be understood backward.”</mark> _<mark>Kierkegaard</mark>_ “Study the past if you would define the future.” _Confucius_

## **Introduction**

_"Gender equality means having the same rights and opportunities." "It means the same rights at work and in the home." Two urban adult women, Lambayeque, Peru_ .<sup>2</sup> Discriminatory laws in many countries across the world continue to act as a significant brake on women’s entrepreneurship. Gender differences are not found in business laws, which are generally gender-neutral, but in laws that are ostensibly supposed to regulate the private space, such as family and inheritance laws. These laws can determine the amount of assets controlled and owned by women, restrict their mobility, and limit their autonomy to make everyday decisions, such as getting a job outside the home or going to court. The restrictions can trigger marriage resulting in a paradox; a married woman can have a similar legal capacity as a child when it comes to opening a bank account or signing a contract in that she cannot do it on her own.

This study tracks the evolution of key constraints to women’s and girls’ equal rights to property and restrictions on their legal capacity over the past 50 years across 100 countries. The database of legal indicators represents all geographic regions, legal traditions, and income levels (see annexes 1-3 for more details on methodology and country coverage).

The paper describes the nature and implications of these legal restrictions and analyzes how their prevalence has changed across countries and over time. It demonstrates that change is possible; over half of the constraints that were on the books in the 1960s were removed by 2010. Whereas 75 countries in the initial period had at least one constraint to women’s economic rights, only 47 did in 2010. Of the 75 countries with some initial inequalities, all but 18 countries had closed at least one legal gender gap. And 28 countries had eliminated all the inequalities analyzed here.

The extent of progress, however, is uneven. Eastern Europe and Central Asia, a region that began with very few inequalities, no longer has any that are followed here. Many high-income OECD countries started with several inequalities, but all have removed them and countries in Latin America have also made tremendous progress. Countries in Sub-Saharan Africa, which had a higher rate of constraints than any other region, have removed more than half of the constraints that had been on the books. East Asian countries have also halved the number of constraints. However, in the Middle East and North Africa and in South Asia, much less progress has been realized.

> 2 World Bank Dataset 2011a.

2
This paper explores some of the factors that can trigger reforms. It examines which country characteristics and processes are associated with reforms, focusing on income growth, education, patterns of employment, conflict, women’s empowerment (e.g. women parliamentarians, ratification of CEDAW, women’s age of first marriage) and the strength of the rule of law.

The relationship between reform and higher income is not straightforward. It is not the case that development itself will help close these gender gaps. While income is not associated with reforms during the first half of the period studied here, in the last 20-25 years, there is more of a positive association between income and reforms, but only in low-income countries. As the constraints that still remain on the books are as prevalent in middle-income countries as lowincome countries, this is unlikely to be a strong predictor of future reforms.

On the other hand, two positive trends are particularly striking. The first trend can be referred to as the “CEDAW effect.” The ratification by states of the CEDAW convention is linked to reform within a short-term period, benefiting unmarried women in particular. The average pace of reform within the 5 years after ratification is almost double the pace in the 15 years prior to ratification. The second significant trend is based on increases in women’s political representation. Increased female legislators at the national level (25% and over) has catalyzed the reform of discriminatory laws. Thus, CEDAW and higher rates of women in parliaments are associated with more reforms closing legal gaps in women’s economic rights. If active engagement is needed to move the reform agenda forward, these may be the more promising channels.

The next section will give a brief background of the literature of the impact of legal reforms, motivating why it is important to remove the remaining inequalities women and girls face. The paper then provides more background on the historical and legal sources for why many of the constraints are on the books in various countries. The following section then discusses the methodology for collecting the legal indicators. Then paper examines the overall trends – where there has been improvement and where the sticky points are. Finally we analyze in greater detail some of the underlying factors behind these trends.

# **Literature Review of the Impact of Legal reforms**

Reforming discriminatory laws is important for women’s economic participation. A 2013 World Bank report highlights how gender differences in legal status and property rights are a significant constraint on women’s entrepreneurship. Stronger economic rights are linked to higher ratios of female employers within a country. Weaker property rights undermine women’s ability to access assets to use as collateral for loans and grow their businesses. A study demonstrated that improving women’s property rights in Burkina Faso could increase agricultural production by 6% with no additional resources – solely by the reallocation of resources (fertilizer and labor) from men to women.<sup>3</sup> Improving the security of land titling can increase women’s labor

> 3 Udry 1996.

3
participation by liberating them from standing watch over their property, as reported in a 2007 study of slum dwellers in Peru.<sup>4</sup> The reform of family laws in Ethiopia in 2000, which raised the minimum age of marriage, removed the husband’s ability to deny permission to work outside the home, and required both spouses’ consent in the administration of marital property, was linked to increased female labor force participation and in more productive sectors.<sup>5</sup> A 2007 study highlights that laws demarcating women’s working hours or types of employment that are found today in approximately 75 countries<sup>6</sup> can constrain women’s employment opportunities and significantly increase gender wage gaps.<sup>7</sup> A 2012 World Bank study on norms and agency found that in countries such as Yemen, where women’s physical mobility is restricted, women were less attractive as potential employees. Even where they were as qualified or even more qualified than male applicants, the need for a husband’s permission to work made them less reliable in the eyes of employers.<sup>8</sup> Improving women’s access to assets can benefit society as a whole and can result in transformative changes. Studies using evidence from across a range of countries demonstrate that increasing the share of household income that women control either through their own income or cash transfer can result in greater investment in children.<sup>9</sup> Inheritance law reforms in India equalizing inheritance shares for unmarried girls resulted in delayed marriage and more education for girls.<sup>10</sup> A quantitative study in Benin found that women who were able to earn an income were more likely to buy a bed net to prevent malaria transmission, which could be used by children. Men were more likely to purchase bed nets for their own personal use on the basis that as the breadwinner of the family they were entitled to protection.<sup>11</sup> A 2009 IFPRI research paper showed that if men and women were to have equal rights, the number of malnourished children could be reduced by 1.7 million in Sub-Saharan Africa and by 13.4 million in South Asia.<sup>12</sup>

# **Context for Understanding Approaches to Legal Rights**

With a few significant exceptions, most of the present day legal constraints are found in decades – or even centuries – old statutes that have not been reformed. Contemporary national legal frameworks did not emerge from a vacuum – like culture, language and social norms, legal

> 4 Field 2007.

> 5 Hallward-Driemeier and Hasan 2012.

> 6 World Bank Group. Data retrieved April 14, 2013, from Women, & the Law database (2011a).

> 7 Weichselbaumer and Winter-Ebmer 2007.

> 8 Turk, Munoz-Boudet, and Petesch 2012.

> 9 Doss 2006 and Quisumbing and Maluccio 2000.

> 10 Deininger, Goyal and Nagarajan 2010.

> 11 Rashed 1999.

> 12 Ragasa and others 2012.

4
frameworks are a melting pot of historical influence, partly indigenous and partly imported through colonial histories.

Different legal systems have comparative strengths and weaknesses when it comes to gender rights (see Annex 3 for a complete list of countries by legal tradition). Historically family law was traditionally seen as non-state law that was determined by traditional authorities such as tribal chiefs and religious officials. Over time and at different times, states started assuming control over family law as part of a state-building process either through sidelining the traditional authorities or striking bargains to consolidate their power.<sup>13</sup> Socialist systems were the most progressive on paper when it comes to gender rights and these legal traditions typically do not have legal constraints. The socialist revolution in the Soviet Union in 1917 deliberately diminished the role of the church by liberalizing divorce laws and requiring that all marriages be civilly registered. A 2003 study highlights that the earliest reforms of family law did not take place in the most developed economies and the most democratic political regimes. Some countries were very early reformers – most of the reforms in the Nordic countries took place during the early 1900s. By 1930, the laws regarding divorce and matrimonial property were gender equalized. The explanation offered for this is a higher degree of securalization and the presence of two dominant ideological movements. The combination of liberal left ideologies with secularist ideas was the backbone of this reform.<sup>14</sup> Civil law systems historically deriving from Roman law are found for example in Latin America, Francophone and Lusophone ex-colonies in Africa, the Middle East and North Africa, East Asia Pacific and the former colonizing countries in Europe such as France, Spain, Portugal, Germany and the Netherlands. Roman law shaped the 1804 Napoleonic Code that was adopted in Latin America and continental Europe. The 1900 German Civil Code was heavily influenced by the Napoleonic Code but was differently structured and influenced the family codes in Korea and China.<sup>15</sup> Both codes were advantageous when it came to division of marital property<sup>16</sup> and inheritance rights but they also tended to bestow greater control to the husband over assets and the wife’s actions than common law systems. The need for marital authorization still existed in some countries in Europe until the latter part of the twentieth century. The head of household provision was reformed in France in 1974 and the husband’s control over marital property was removed finally in 1985. The need for spousal permission to work remained on the books up to 1978 in Spain and 1984 in Switzerland. Significant reforms to the wife’s control over her personal property took place in the early 20<sup>th</sup> century in some countries in Latin America. Reforms to the husband’s sole administrative control over joint marital property and over family affairs took longer to achieve in many countries; many of these later changes that took place are captured in the database.

> 13 Htun and Weldon 2011.

> 14 Antokolskaia 2003.

> 15 Htun and Weldon  2011.

> 16 It should be noted that divorce was not permitted in many Catholic countries in Europe and Latin America until the mid to late 20<sup>th</sup> century.

5
Common law systems found in the ex-British colonies and the UK gave more autonomy to the wife but gave less access to marital assets and were weaker on inheritance rights. Historically the doctrine of _couverture_ in the common law system had given the husband control over the wife’s assets. The wife had no independent legal personality. England repealed these laws in 1882. In contrast countries such as India colonized by Britain generally had less restrictive pre-colonial personal laws and accorded married women an independent legal personality.<sup>17</sup> By the time of independence the statutory marriage laws inherited by the ex-colonies in the 1940s and 1950s onwards no longer included the _couverture_ doctrine.

The British colonial framework with its emphasis on indirect rule more readily recognized plural legal systems with customary and religious law left to regulate the personal affairs of the indigenous populations. Colonial rule sometimes codified a more patriarchal and uniform version of indigenous customs and religious law that reflected the social norms of the colonizing country rather than the local practice.<sup>18</sup> In some instances, religious laws codified by the British in India were exported wholesale to colonies in Africa such as Kenya.<sup>19</sup> Customary law was sometimes recognized in francophone colonies with civil law systems to appease indigenous populations, e.g., Algeria and Niger. The strengthening of customary and religious systems during colonial rule meant that these systems continued post-independence.<sup>20</sup> Countries vary, however, not only in whether customary or religious laws are recognized as formal sources of law in the constitution, prevailing over marriage, marital property and inheritance, but also on whether or not customary and/or religious law is exempt from constitutional principles of nondiscrimination. As discussed below, these are areas where constraints have not only been inherited from colonial powers, but have been introduced in more recent years.

Hybrid systems, which are a mix of common law and civil law systems, often come out with the highest share of constraints in these indicators. This can be partly explained by the fact that the majority of ‘hybrid’ countries covered were located in Southern Africa. Their history has been marked by the rigid discriminatory aspects of apartheid rule which dominated the region until the mid-1990s. They tend both to recognize customary law and exempt it from non-discrimination, while also recognizing many of the head of household laws that limit women’s legal capacity.

The historical evolution of these different legal traditions within countries have present-day implications for women. A 2013 study linked marital property regimes to land ownership in Ecuador, Ghana and Karnataka in India. Ecuador, a civil law system, had the highest level of ownership of ‘couple wealth’ -44% -which can be directly linked to its joint property regimes and egalitarian inheritance laws. This included joint ownership of marital homes and agricultural parcels. In contrast married women in Ghana and Karnataka, both common law system with

> 17 Deere 2013. 18 Htun  and Weldon 2011. 19 Hallward-Driemeier and Hasan 2012. 20 Htun  and Weldon 2011.

6
limited access to marital property and and male-biases in inheritance laws, owned just 19% and 9% of assets with men owning the majority of dwellings, agricultural parcels and other real estate. Land was mostly titled in the sole name of the husband.<sup>21</sup>

# **Methodology for Collecting Legal Indicators (See Annex 1)**

The database provides 0-1 indicators for measures of formal property rights, restrictions on legal capacity and constitutional protections of equality and non-discrimination. The indicators are based on provision in countries’ constitutions and statutes (usually family laws or family codes, succession acts, etc.). Countries receive a “0” if the particular right is not equal for men and for women and a “1” if women and men enjoy the same right equally. The indicators do not measure the extent of the inequality, just that there is a difference between the genders. The database covers 17 indicators. Each is reported separately; the database does not aggregate or weigh the relative importance of the indictors. More detailed notes regarding reforms, and access to the underlying data, are also available on-line (wbl.worldbank.org/timeseries).

All regions and income groups are represented in the 100 countries covered in the database (see Annex 2 for the list of countries by region). There is a concentration of countries in Sub-Saharan Africa to build on substantial legal data already collated relating to women’s economic empowerment and reflecting operational interest in the region (see Hallward-Driemeier and Hasan 2012). We track the laws for the main business city (not necessarily the capital city) and the majority of the population. In Nigeria, we cover Lagos and exclude federal laws of other states as well as laws applicable to the minority communities within the province of Lagos.

The starting point of 1960 was selected as this era encompassed the recent independence of many of the ex-colonies in Africa, East Asia and the Pacific, the Middle East and South Asia, with some exceptions. Certain countries achieved independence later after periods of conflict either splitting or reunifying – Bangladesh split from West Pakistan in 1971 and North Yemen reunified with South Yemen in 1990. The majority of Latin American countries had become independent much earlier in the 1820s and all of the ECA countries<sup>22</sup> apart from Turkey achieved independence and legal autonomy after the fall of the Soviet Union in the late 1980s. For countries that have merged, we track the laws of the ‘winning’ state from 1960 onwards. For instance we covered the laws of North Yemen for the period 1960 to 2010 which dominated the legal framework of the entire country after reunification with South Yemen in 1990. For countries that divide, they share the same indicators for the period when they were the same country and then their own separate indicators among their independence.

> 21 Deere 2013

> 22 Some countries such as Bulgaria were technically independent from the Soviet Union but fell under its sphere of influence.

7
**Table 1: Regional and Income Representation of Countries (1960)**

|**Region**|**Number ofCountries**|**Low Income 1960**|**Low Middle Income 1960**|**High Middle Income 1960**|**High Income 1960**|
|---|---|---|---|---|---|
|**EAP**|12|5|3|3|1|
|**ECA **|10|0|4|6|0|
|**LAC**|15|0|1|11|3|
|**MENA**|8|0|5|3|0|
|**OECD **|17|0|0|2|15|
|**SAR**|5|5|0|0|0|
|**SSA **|33|16|14|2|1|
|**Total**|**100**|**26**|**27**|**27**|**20**|

# **Selection of Indicators – Why They Are Important**

The indicators selected impact on women’s economic empowerment but are not intended to be exhaustive. Although the categories overlap, they can be broadly classified under the following categories:

**Table 2.  List Of Questions Tracked From 1960 To 2010**

|**Category**|**Question**|
|---|---|
|**Property Rights and Access to**<br>**Assets**|Do unmarried men and unmarried women have equal ownership<br>rights over immoveable property?|
||Do married men and married women have equal ownership rights<br>over immoveable property?<br>Do sons and daughters have equal inheritance rights over<br>immoveable property from their parents?<br>Do female and male surviving spouses have equal inheritance rights<br>over immoveable property?<br>What is the default marital property regime?<br>If joint titling exists for married couples, is it the default for marital<br>property?|
|**Legal Capacity: Restrictions on**<br>**Agency and Mobility for**<br>**Married Women**|Can an adult married woman legally be designated as "head of<br>household" or "head of family" in the same way as an adult married<br>man?|
||Does an adult married woman legally need permission from her<br>husband in order to get or keep a job or pursue a trade or profession;<br>or can a husband legally stop his wife from working?|

8
<mark>Can an adult married woman legally open a bank account in the</mark> same way that an adult married man can?

**<mark>Constitutional Approach to Gender Equality and Plural</mark> Legal Systems**

<mark>Are there any legal provisions that prevent an adult married woman from signing any type of contract in the same way that an adult</mark> married man would? <mark>Do adult married women need permission from their husbands in</mark> order to initiate legal proceedings in court in civil cases? Does the Constitution guarantee all citizens equality before the law? <mark>Is there a non-discrimination clause covering gender or sex in the</mark> Constitution? <mark>Are customary law and/or religious law a valid source of law under</mark> the Constitution? <mark>Are customary and/or religious law invalidated if they violate</mark> Constitutional provisions on equality and/or nondiscrimination?

These questions provide a snapshot as to where a country was and is on the spectrum of genderfriendly laws. Equal rights to property provide opportunities for women seeking to use those assets to generate income or grow their businesses through collateral. Unhampered access to assets can be a safety net in times of crisis and reinforce exit options for women particularly in the context of gender violence. We focus on intestate inheritance laws which apply where there is no will – this can be the most common scenario in many countries especially in Sub-Saharan Africa. Inheritance laws are an important transmission mechanism of assets between generations and can determine household income and earnings capacity of the next generation. Such laws can marginalize women further by allocating smaller shares of the estate or excluding them altogether and reinforce gender gaps for decades to come.

The impacts of marital property regimes are generally less understood and operate in more subtle ways to limit access to assets for women. They determine whether property acquired before or during the marriage is shared by the spouses or not. As such they can have implications for marital property within marriage as well as on divorce and inheritance; Annex 4 discusses them in more detail. They often stem from particular legal traditions (separate property regimes are prevalent in common law traditions and where polygamy is recognized, while community of 9
property is more prevalent in civil law countries). As such, the default regime<sup>23</sup> is not often changed, so much of the analysis done here will not apply to this indicator.

Turning to the restrictions on agency and mobility, permissions to carry out everyday activities are clear-cut constraints. The range of benefits accorded to a head of household vary across countries – in some countries such as Cameroon, the role of head of household gives tangible rights such as control over household finances and in Jordan, exclusive access to state benefits. In other countries such as Tunisia, the provision is more symbolic which nevertheless can reinforce patriarchal social norms. All these laws impacting mobility are particularly challenging for de facto female headed-households e.g. women whose husbands are migrated or are separated but not officially divorced.

Constitutional frameworks can be interpreted as signposts regarding a country’s approach to gender equality. In particular, constitutional exemptions for customary and religious law from the provisions of non-discrimination in the realm of family and inheritance laws. Although there still may be statutes limiting the application of customary law and religious law on the grounds that they are unfair, the lack of constitutional oversight is a weakness in the legal framework. Women’s groups have used constitutional provisions on equality and non-discrimination to challenge discriminatory statutory and customary laws. In Botswana, women’s groups supported a landmark constitutional challenge, the Unity Dow case, which successfully overturned discriminatory citizenship laws and set in motion a whole range of statutory and constitutional reforms. The legacy continues today in Botswana with the 2013 Mmusi case, which successfully challenged customary laws favoring male heirs as unconstitutional.<sup>24</sup> This is in spite of the fact that the Botswana constitution specifically exempts customary law from principles of nondiscrimination.<sup>25</sup> The 2010 removal of the constitutional exemption for customary law in Kenya was a culmination of a mobilization campaign by women’s networks.<sup>26</sup> Constitutional reform processes arising in the aftermath of political transition (Spain 1978), conflict (Kenya 2010) or the new-found independence (Fiji 1970) have provided ideal entry points to introduce or reinforce equality and non-discrimination provisions. Conversely, times of upheaval can carry the risk of regression – a newly reunified Yemen amended its constitution in 1994 to remove the non-discrimination provision.

However, a lack of equality and non-discrimination provisions -- and even a lack of a constitution -- cannot be read as an unequivocal gender gap. The United States has neither of these provisions, and the UK does not have a formal constitution, but both these countries score highly across various gender indexes. It should also be noted that many countries, including the

> 23 The default regime is the property regime that applies automatically unless both spouses agree by declaration or in writing to opt out and choose another property regime at the time of marriage.

> 24 <u>http://www.southernafricalitigationcentre.org/cases/ongoing-cases/mmusi-and-another-v-ramantele-and-another/.</u> 25 Hasan and Tanzer 2013.

> 26 Hasan and Kamangu 2013.

10
US and UK, have statutory equality and non-discrimination _laws_ (rather than _constitutional provisions_ ) which are not covered by this study.

# **Areas for Future Analysis**

There are gaps and areas which are not covered in this study which could merit a similar analysis in the future. For instance, in some countries single women need the consent of their male relatives to work outside of the home and travel abroad or even within a country. Discriminatory citizenship laws can prevent married women married to non-nationals from passing citizenship to their spouse and/or their children. Discriminatory labor laws can prevent women from working in certain industries and limit working hours and include other provisions such as maternity leave and differentiated retirement ages impacting on women’s participation in the labor force. Legal recognition of non-monetary contributions (i.e. where child care and household duties can entitle the wife to a share of the marital property on divorce) is not covered here but is an important distinction in comparing the protections of various default marital property regimes (see annex 4).

Case law plays a prominent role particularly in common law countries. It can fill in gaps or progressively interpret statutory laws where there are glaring inadequacies in the legal framework or reinforce negative discriminatory laws. On the positive side, there may be statutory laws on discrimination that we do not cover which offer protection in instances where the constitution is silent or there is no constitution.

Finally we do not look at the implementation of laws- whether good and bad laws on the books are actually applied in practice. The ex-socialist countries in the ECA region had gender equal laws derived from the Soviet Union and so scored highly on our indicators. However, the 2013 ECA World Development companion Report on Gender Equality has found implementation of laws can be weak and in practice there are fewer female land owners than men despite the legal requirement of joint titling for married women.<sup>27</sup> In Vietnam, prevailing social norms that regarded men as head of household rather than a legal requirement undermined the implementation of gender-neutral land titling laws.<sup>28</sup> At an individual country level, Zimbabwe did carry out wide scale reforms over the past fifty years that left it with just one gender gap in the variables that we are looking at but a 2012 NGO CEDAW shadow report<sup>29</sup> shows that the reality on the ground is very different.<sup>30</sup>

> 27 Sattar 2012.

> 28 Klugman, J. & Morton, M. (forthcoming).

> 29 A shadow report is prepared by non-state actors such as not for profits to provide feedback to the CEDAW committee which is independent of an official  State Report and is an important mechanism for women’s networks to highlight areas requiring reform.

> 30 Zimbabwe Women Lawyers Association 2012.

11
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<!-- Start of picture text --> 60<br>50<br>3 40 B Initial period m 2010<br>5<br>i=<br>=<br>S<br>5 30<br>_<br>e<br>7]<br>2<br>@ 20<br>10<br>0<br>0 1 2 3 4 5 6 7 8 9 10<br>Number of legal gender gaps in a country<br><!-- End of picture text -->
Married women need permission to initiate legal proceedings First available year of data: 1960-1965 <!-- Start of picture text --> IBRD 40366=5 UNCODIFIED - CUSTOMARY LAW a : a<br>endorsementpeeor acceptance of math bemdories. [__] noon<br><!-- End of picture text --> Married women need permission to initiate legal proceedings Latest available year of data: 2010 <!-- Start of picture text --> IBRD 40367=5 UNCODIFIED - CUSTOMARY LAW a ‘ a<br>endorsementpeeor acceptance of math bemdories. [__] noon<br><!-- End of picture text -->
<!-- Start of picture text --> 45<br>40 m EAP<br>35<br>3 mECA<br>Es @ LAC<br>9 m MENA<br>a} - m OECD<br>5 15 mSAR<br>£<br>2zs 105 mSSA<br>0<br><\ ' < a c =< wywn =° vi) co S<br>Ps c Du & a) c ao £ of ns € os)<br>ES =e 585 £8 $4 2 £8 225 52 Ge 3<br>fe Es 22 Ss 23 ry ae) =~2e2 05 c vo<br>BE £8 32 §3 $2 SE Be B55 55 —&> 22<br>Eo FE §2 338 28 £28 #3 gt2 83 st 35%<br>23 €e €o #¢€ € 6S ¥& Se§ £3 o 8S<br>as ¢8 Es EF & $° g& SES ES BE 8B<br>am) os 5 o a 2 Ee £222 6 on 5<br>3 o € 2 = EE a 5 2<br>Sod 5 og *&5 2<br>45<br>40<br>FA - m EAP<br>= 30 BECA<br>5 25 mLAC<br>- 20 mm OECDMENA<br>~ 15<br>2 mSAR<br>10 mSSA<br>35<br>)<br><!-- End of picture text -->
<!-- Start of picture text --> ECA<br>OECD<br>@ Never constraint<br>LAC<br>@ Reform<br>EAP<br>@ Never reform<br>S54<br>BS introduced<br>SAR constraint<br>MENA<br>-50% oOoO 5056 100%<br><!-- End of picture text -->
<!-- Start of picture text --> Socialist<br>Civil law mw Never constraint<br>@ Reform<br>Common law @ Never reform<br>mg lintroduced constraint<br>Hybrid<br>-50% 0% 50%. 100%.<br><!-- End of picture text -->
<!-- Start of picture text --> Share of countries with equal rights to immoveable property<br>=<br>°<br>3=) ee -7<br>3 a<br>2: orenn?<br>ss<br>& wn’<br>a2 foe7vd“<br>mA<br>irs)<br>1960 1970 1980 1990 2000 2010<br>es<br><!-- End of picture text --> <!-- Start of picture text --> Share of countries with equal inheritance rights<br>wo<br>s<br>N,<br>8x j-/<br>= Hi<br>bs)3 S-J<br>5 nf<br>s rd<br>a8 ‘I<br>©<br>1960 1970 1980 1990 2000 2010<br>year<br>— ‘oss<br>and sons _—===- W e nd sbnds<br><!-- End of picture text -->
<!-- Start of picture text --> Joint tiling default for married couples<br>Timeline by legal tradition<br>- ae<br>oa<br>o TT<br>+ ——__————;*<br>f<br>p---------!<br>=] oe i<br>ol rrr ee oe<br>1960 1970 1980 1990 2000 2010<br>year<br>—— civil —---- hybrid<br>----- common -—- — -- socialist<br><!-- End of picture text --> <!-- Start of picture text --> Adult married women head of household<br>Timeline by legal tradition<br>eee<br>axe<br>---<br>f<br>poco co<br>ioe) f<br>f<br>=e<br>BL<br>1960 1970 1980 1990 2000 2010<br>year<br>—— civil —---—- hybrid<br>----- common -—-- - -- socialist<br><!-- End of picture text -->
was reluctant to interfere with indigenous laws that did not interfere with civil order and national security concerns and this approach continued in the ex-colonies after independence. For hybrid legal traditions which are mostly found in Southern Africa, the variation over time is partly explained by differing post-independence approaches – Botswana’s constitution exempts customary law whereas the South African and Namibian constitutions do not.

### **Figure 10. Customary Law More Likely To Be Exempted From Non-Discrimination and Equality Provisions In Hybrid And Common Law Countries**

<!-- Start of picture text --> Customary Law exempt from non-discrimination clause<br>1960 1970 1980 1990 2000 2010<br>year<br>Civil Hybrid<br>Common Socialist<br>.6<br>.4<br>.2<br>Share of countries<br>0<br><!-- End of picture text -->

# **Testing Key Determinants of Reform**

## **Approach**

In addition to the more descriptive analysis of gender gaps in legal rights, we also explore how various country characteristics are associated with the probability of reform using regression analysis (see annex 6 for a description of the variables and their sources). We look at each of the legal indicators separately. The various variables used to explain the probability of reform are included one at a time in Table 3 (located in annex 7). This is done for two reasons. First, the time coverage of the different variables varies by series; GDP per capita, conflict and the ratio of girls to boys in primary education are available for almost all countries for all 50 years. However, other variables, such as women in parliament or law and order are only available for 20
the last 20 – 25 years. Looking at each variable separately thus allows for as many observations to be included as possible.

Second, there could be feedback loops; reforms themselves could affect some of the country characteristics. This is most likely to be true for the measures of education, employment and health, but could also matter for the share of women in parliament. It is also true that some changes in the country characteristics might also take some time to translate into legal reforms. In order to address this, the regressions look at the impact of country characteristics on reforms after a 5 year interval. As all the relevant country characteristics cannot be controlled for, we also include country fixed effects to absorb all the country effects that do not vary over time.

Table 3 provides the regression results of the probability of reform, with each cell representing a separate regression. Each explanatory variable enters on its own, with GDP per capita, a country fixed effect and a time trend also controlled for. Thus, time invariant characteristics are controlled for and the effect of the explanatory variable is identified off changes in its value over time rather than in comparison across countries. This provides a stronger test of how changes in conditions within a country predict whether or not it reforms.

Table 4 then allows for the possibility of non-linear effects in both GDP per capita and in conflict. Thus it tests whether the effect of raising GDP per capita is different at higher and lower levels of income. For conflict the test is whether the presence and/or the intensity of conflict play roles in the reform process. As the signing of CEDAW was significant in Table 3, it is also included to capture the role of international norms and pressures on the probability of enacting reforms.

Later tables then include several additional explanatory variables simultaneously. However, due to data availability constraints, this implies many of the earlier reform episodes will be excluded. Before moving to these results, therefore, we test for the importance of composition effects, both across time periods and countries. Table 4 is repeated for the first half of the sample (1960-1985) and the second half of the sample (1986-2010). As GDP per capita itself is not available for 17 countries prior to 1990, we also rerun the later periods on the 83 countries included in the first half of the data. The country composition effects are not significant, but there are significant differences regarding the role of GDP per capita and reforms. Whereas in the first half of the sample growth is not correlated with reform, the relationship becomes significant in the more recent period, particularly for lower income countries. This finding suggests the drivers of the earlier reformers may be different from that of the late reformers – with implications for being able to predict the reform drivers for those countries that still have not closed the gender gaps in their laws.

Table 5 includes a number of explanatory variables simultaneously, focusing on the legal indicators where legal reforms were more likely. Tables 6 and 7 then explore if there are broader non-linear effects of GDP per capita and ‘rule of law’. The tables show where there are such 21
differential effects, both for measures of property rights and legal capacity. GDP per capita is the most common variable to be significant – but only if its effect is allowed to vary by level of development. Stronger growth helps encourage reforms, but the effect diminishes as incomes rise. The impact of the rule of law is significant in fewer instances, in part because the measure is only available for a large subset of the countries (83 of the 100) and since 1985. However, it does have a role to play in strengthening property rights, particularly in reinforcing CEDAW in countries with otherwise weak rule of law.

The sections below discuss by thematic variable the results of these tables.

# **Income**

In this section we look at whether economic growth on its own is likely to translate into equal legal economic rights for women or if countries need to employ a more proactive agenda in order to achieve legal economic equality.

The top row of Table 3 shows the effects of GDP per capita on each of the legal indicators. It shows that a country’s income in and of itself is not a sufficient factor to generate change in the area of legal economic rights for women analyzed in the present study. Strikingly, income is only significant in two of the regressions – and it enters negatively. Higher growth, on its own, is not a good predictor of reforms.

The second line, however, gives an indication that there may be more to the role of income. Allowing for a non-linear effect, there are four regressions where the results are significant, property rights for unmarried women and three constitutional measures. These results would indicate that if changes in incomes are associated with reforms, the effect is strongest at lower levels of income, and could even be negative at high enough levels of income. This is explored more in Table 4, and GDP is allowed to have non-linear effects in all the other tables.

One question is whether the role of GDP per capita and growth varies over time. Table 4 is repeated using only the first half of the sample (Table 4B) and the second half of the sample (Table 4C). The results do show significant differences. In the earlier years, higher incomes are associated with a greater probability of recognizing equal inheritance between sons and daughters and in having equality as a principle in the constitution – effects that are stronger among lower income countries. And higher income is associated with a higher probability of recognizing women as heads of household—in higher income countries. But for most of the legal indicators, GDP per capita is not significant. However, in Table 4C, GDP per capita is far more significant for the measures of property rights and inheritance as well as most of the legal capacity variables. The effects are again non-linear, most significant in lower income countries and diminishing as incomes rise. These findings indicate that development has had a larger role in encouraging reform—in the more recent period and for lower income countries. This has 22
implications for its likely role in encouraging countries that have not yet reformed, many of which are middle income already.

Table 5 confirms that the relationships with GDP per capita are robust to the inclusion of additional variables. As discussed above, the inclusion of these variables often results in eliminating the earlier time periods as these variables were not generally measured then.

Table 6 then pushes the effects of income one step further – looking to see if it interacts with other variables of interest. The non-linear effects of GDP per capita remain. There are also some examples where the additional interactions are significant, but the effects are not systematic. Thus, for married property rights, there is a positive effect for greater enrollment of girls in primary school on the probability of reform, particularly in lower income countries. For inheritance rights and the ability to work without requiring one’s husband’s permission, the results show that CEDAW can be effective – but only in lower income countries.

One important conclusion coming out of these estimation models is that a simple view that economic growth translates into more equal legal economic rights for women does not hold. Income was not much of a predictor of early reformers. Over the whole period, there is some greater role when non-linear effects are included, but not systematically. Only looking at the last 25 years or so, there does seem to be more of a role for income. The effect is strongest among lower income countries and not significant for most middle income countries. As many of the constraints now remaining are as common in middle income countries as in low income countries, it is unlikely that continued growth in this group of countries will be sufficient to achieve the legal reforms that would give women equal economic rights. Going forward, most countries will need to be proactive in reforming such laws.

# **Conflict**

Next we look at conflict, both its presence and its intensity, and the extent to which this indicator is likely to influence the probability of reform in the areas of legal economic rights analyzed here. Thus results show conflict is associated with a lower probability of recognizing equal inheritance laws, for sons and daughters as well as for husbands and wives, as well as a lower probability of recognizing customary law. The greater intensity of conflict is also associated with lower probability of removing statutes that require women to get permission to open bank accounts, entry contracts or participate in legal proceedings (Table 3).

This pattern on inheritance rights is robust to including both measures together, along with the effects of GDP per capita and CEDAW (Table 4). The results on the restrictions to legal capacity are not. Table 4 also indicates countries that have undergone periods of conflict are less likely to exempt customary law from non-discrimination provisions in their constitutions, and to both recognize religious law and exempt it from non-discrimination provisions. Preservation of plural legal systems can be seen as a bargaining chip for central leaders to consolidate the state building 23
process and post conflict reconstruction. It can also be a way of protecting cultural group rights.<sup>35</sup> When more complex models are used to measure the impact of conflicts (Tables 5, 6 and 7), the significance of conflicts is reduced. Again, this may reflect compositional effects –the effects discussed above mattered more in earlier conflict episodes that are not included in these later tables. It is also the case that the patterns coming out of conflicts may not be uniform. There are certainly examples such as Rwanda where many positive reforms were enacted coming out of the genocide.

# **Rule of Law**

Next we test whether rule of law, as measured with the ICRG’s ‘law and order’ indicator, is related to improved legal capacity measures. As the measure is only available for 83 countries, including this explanatory variable means that a sub-set of countries are excluded from the results that include this indicator. In this sub-set of countries rule of law is shown to have a significant positive impact on women’s ability to be head of household, as well as their ability to work without needing husband’s permission (Table 3).

When we look at an extended set of potentially relevant indicators simultaneously with rule of law (Table 5) we observe that the rule of law indicator has a statistically significant positive impact on equal inheritance rights for surviving spouses, regardless of gender, but it does not influence equal inheritance rights for sons and daughters, or any other access to assets variable. A similar effect is found for reforms that remove the need for wives to gain permission from their husbands to work outside the home.

Table 7 then explores whether the rule of law itself affects how other variables help predict reform. It finds that it reinforces the intensity of conflict in discouraging the reform of married property rights. It also indicates that CEDAW is most effective in promoting inheritance rights where the rule of law is otherwise weak. There is also some effect in reinforcing inheritance rights where girls’ primary enrollment is higher.

# **Sector Value Added to GDP**

A more diversified sectorial composition of GDP could serve to encourage greater reforms, particularly as women’ labor force participation is often higher when the service sector expands.

Our data show (Table 3) that a greater share of services in the economy is associated with greater property rights for married women, as well as greater legal capacity to enter contracts and legal proceedings. However, once other variables are included and accounted for– and the sample restricted to the last 25 years rather than full 50 years – the effects of GDP’s composition are less pronounced and it loses its catalyst for reform significance (Tables 5 and 6).

> 35 Htun and Weldon  2011.

24
The Oil Curse has been forward as an underlying factor behind women’s low labor force participation in oil-dependent countries with little sectorial diversification and high levels of occupational segregation.<sup>36</sup> However, the data do not show too much evidence of this effect. The share of natural resources in merchandise exports is negatively associated with the recognition of customary law and positively associated with women being able to open bank accounts without permission. The coverage of countries in the database may limit the ability to test this hypothesis fully; the database does not cover many of the oil rich countries in the Middle East.

# **The CEDAW Effect**

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) entered into force in 1981. There are now 186 parties to the Convention. The only countries that have not signed are Somalia, Sudan, Iran, Nauru, Tonga, and the USA.<sup>37</sup> The treaty sets out specific obligations targeted at eliminating direct and indirect discrimination against women and to promote formal and de facto equality for women. These include equality before the law and the elimination of discriminatory customary and traditional practices. Civil law countries are mostly monist countries, which means that there is no further need for domestic enactment of the treaty obligations after ratification. Common law countries are mostly dualist countries – the country has to enact domestic legislation to enable enforcement of the treaty’s provisions within the country.<sup>38</sup> The pattern of ratification has been shown to be triggered by external events at an international level such as the 1985 Nairobi Third World Conference on Women and the 1995 Beijing Fourth World Conference on Women.<sup>39</sup> The ratification of CEDAW encouraged states to review family laws as a way of signaling their integration in the international order and world civilization.<sup>40</sup> Monitoring mechanisms under the Convention include a mandatory reporting procedure by governments to the CEDAW Committee, which subsequently makes recommendations for improved implementation. Civil society groups use this opportunity to engage with the government during the review process and to submit their own shadow reports. Women’s networks have also used CEDAW in strategic litigation in many countries to challenge discriminatory laws including customary inheritance laws in Kenya<sup>41</sup> and Botswana.<sup>42</sup> A number of states have ratified CEDAW with reservations that exclude the domestic applicability of specific CEDAW articles. For our purposes, the reservations that are important are those which

> 36 Ross 2008.

> 37 The US has signed but not ratified the convention.

> 38 There are a few exceptions to the general pattern. The new 2010 Kenyan constitution changes Kenya, a common law country, from a dualist to a monist system.

> 39 Byrnes 2011.

> 40 Engle-Merry 2003.

> 41 Rono v Rono Civil Appeal No. 66 of 2002, 1KLR (G & F) 804 (2005).

> 42 Mmusi and Others v Ramantele and Another (2012) BWHC 1.

25
increased participation of women in politics at a local level influences policy-making at a local level with greater investment in public services such as water<sup>47</sup> and has other benefits such as an increase in the reporting of gender-based violence.<sup>48</sup> Our research shows that increased participation of women at a national level (25% and above, see annex 5 for the list of countries) can have a significant positive effect on the removal of discriminatory laws. Table 3 shows that it has a statistically significant positive impact equal property rights for married women. The presence of women in national parliament also has a significant positive impact on all restrictions on agency and mobility for married women, with the exception of needing permission to get a job or pursue a profession. This means that the higher the percentage of women in parliament, the less likely it is that women in that country need permission from their husbands in order to open accounts, sign contracts and initiate legal proceedings. It also points out the fact that political participation of women makes it more likely for a country to recognize adult married women as head of households, the same way as an adult married man.

The extension to Table 5 shows that with the addition of other variables, women in parliament is still positively and significantly associated with almost all the indicators associated with access to and control of assets as well as legal capacity. Table 6 does not include women in parliament due to the more limited time coverage, but in its more limited sample, these positive effects are strongest in lower income countries.

> 47 Chattopadhyay and Duflo 2004.

> 48 Iyer 2012.

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<!-- Start of picture text --> Number of constraints in countries with 25%+<br>women in parliament<br>~2010-<br>4 .<br> constraints 5 constraints<br>4%<br>3%<br>3 constraints \<br>4% \<br>N \<br>2 constraints \ \<br>10% \ \<br>1 constraint<br>10%<br><!-- End of picture text --> <!-- Start of picture text --> Number of constraints in countries with 0-25%<br>women in parliament<br>6 constraints 8 constraints<br>4%<br>; 1%<br>5 constraints<br>3%<br>4 constraints<br><!-- End of picture text -->
Substantial changes have been achieved in closing formal gaps in women's rights to access and control assets, to have full legal capacity and to have non-discrimination principles apply to key areas of marriage, property and inheritance. Indeed, the evidence of this from the last 50 years is impressive. However, more still needs to be done. And the uneven relationship between income and reforms indicate that the agenda often requires proactive engagement.

Positive change has come about in various ways including the influence of international conventions, mobilization by women’s networks, increased female political participation and sectoral diversification. These factors are interlinked – for example, the ratification of CEDAW helped to mobilize women who lobbied for increased political participation. Continuing CEDAW’s momentum can continue to put a spotlight on countries to reaffirm their international commitments. Building up the capacity of women’s networks to lobby for the implementation of CEDAW through shadow reports and strategic impact litigation could also be effective. Promoting women’s legislative representation, particularly at national levels, is also associated with more statutes granting equality of rights to women and men.

This paper has laid out how legal rights have changed - across legal issues, across countries and over time. It has identified some of the factors associated with reforms. The companion paper provides a complementary analysis of the links between the legal framework and women’s economic empowerment, including employment, health and educational outcomes. It is hoped that the data that have been generated will yield even more insights of the contributions legal reforms can make, and will help policy makers and advocates for gender equality better understand the pathways and entry points for reform in countries which still have discriminatory laws on the books.

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