2. Legal frameworks in the African region
This chapter presents an overview of the legal landscape in Africa regarding women’s rights in areas covered by the Social Institutions and Gender Index (SIGI). It begins with a description of existing international and regional legal instruments designed to promote gender equality and women’s empowerment. Through cluster analysis, the chapter highlights similarities among different national legal frameworks. It concludes by discussing legal frameworks governing workplace rights, violence against women, female genital mutilation and child marriage, as well as political voice and access to financial services. For each of these themes, the chapter highlights relevant reforms and common elements of legal frameworks governing these issues on the African continent. Finally, the chapter offers recommendations for countries to strengthen legal frameworks in order to guarantee women and girls equal rights with men and boys.
Legal frameworks can either support or hinder gender equality and women’s empowerment. By incorporating gender equality within formal laws, countries support women’s economic empowerment, political voice and widen their opportunities for development overall. Conversely, discriminatory laws promote the subordination of women and girls and support attitudes and harmful practices that limit their opportunities and potential. Discrimination in legal frameworks contributes significantly to persistent gender gaps in women’s economic, social and political empowerment. In fact, high levels of discrimination in legal frameworks are positively correlated with wider gender gaps across the three dimensions – economic, social, and empowerment and representation – measured by the Africa Gender Index (AGI) (African Development Bank Group, 2020[1]) (Figure 2.1). However, supportive legal frameworks alone are not sufficient to ensure substantive gender equality and must be fully implemented and accompanied by concerted policy action in order to be truly transformative.
Note: The figure presents the estimated level of gender inequality in outcomes as measured by the AGI, and the level of gender-based discrimination in legal frameworks as measured by the SIGI legal index. Higher AGI scores indicate greater levels of parity in outcomes. An AGI score between 0% and 100% indicates gender inequality in favour of men, while a score of 100% represents parity between men and women. SIGI Legal Index scores range from 0 to 100, with 0 indicating no discrimination and 100 indicating absolute discrimination in legal frameworks.
Source: Authors’ own calculations; (AfDB, UNECA, 2020[2]), Africa Gender Index.
This chapter commences with an overview of certain pre-eminent international, regional and sub-regional legal instruments that establish standards for women’s rights. This is followed by an assessment of forms of discrimination against women which are embedded in the laws of African countries. Here, cluster analysis is used to group countries based on similarities in their legal frameworks, as measured by the Social Institutions and Gender Index (SIGI). The final part of the chapter is split into four thematic sections that examine legal reforms and existing gaps across six of the SIGI’s 16 indicators: “Workplace rights”, “Violence against women”, “Female genital mutilation”, “Child marriage”, “Political voice” and “Access to financial services”. These four thematic sections capture areas where significant action is required and also identify areas where legislation adequately protects women’s rights.
National governments throughout Africa have signed and ratified international, regional and sub-regional agreements and instruments that aim to promote women’s empowerment and gender equality. In some cases, countries have incorporated the standards and goals set forth in these commitments into national legal frameworks, policies and other measures; however, in others, this has yet to take place. Even where national laws have yet to align fully with these agreements, the standards set forth have served as an important tool in the advocacy efforts of civil society organisations working to promote women’s and girl’s rights on the continent. This section outlines some of the pre-eminent international, regional and sub-regional agreements and legal instruments that exist to promote women’s empowerment and gender equality around the globe and in Africa specifically.
The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (1979)1 is one of the foremost international instruments on women’s rights and gender equality. Exclusively devoted to gender equality, CEDAW defines sex-based discrimination and its root causes, outlines legal obligations for States parties in regard to the fulfilment of substantive equality between women and men, and provides a framework for monitoring its implementation by the CEDAW Committee. In addition to CEDAW, the Beijing Declaration and Platform for Action (1995) form the basis of a global agenda for women’s empowerment. The Beijing Platform for Action (BPfA) highlights 12 areas for urgent action to promote women’s empowerment including women and health, violence against women, women and the economy, women in power and decision making, and more. Every five years, the Commission on the Status of Women reviews implementation of the BPfA. Finally, the Sustainable Development Goals (SDGs) (2016), specifically SDG 5: “Achieve gender equality and empower all women and girls”, includes targets to eliminate discrimination and harmful practices, and promote gender equality and women’s empowerment by 2030, among others.
On the continent, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (“The Maputo Protocol”) (2003),2 outlines a range of women’s rights including economic, social, civil and political as well as cultural and environmental rights. The Maputo Protocol was devised to complement and strengthen the commitments to women’s rights made in the African Charter on Human and Peoples' Rights (“The Banjul Charter”) (1981). Article 18 of the Banjul Charter specifically calls on states to eliminate discrimination against women and to protect women’s rights in alignment with international declarations and conventions.
Within Africa’s sub-regions, multiple instruments address women’s empowerment and gender equality. Both the Southern African Development Community’s (SADC) Gender Protocol (2008)3 and the East African Community Gender Equality and Development Bill (2016)4 are harmonised with international and regional agreements that aim to enhance planning, implementation and monitoring to support the elimination of discrimination, the empowerment of women and the achievement of gender equality in the respective sub-regions. The Economic Community of West Africa States (ECOWAS) Treaty (1975, revised in 1993)5 includes a dedicated article on Women and Development (Article 66), which calls on states to address constraints and promote “the enhancement of the economic, social and cultural conditions of women”. Moreover, the Supplementary Act relating to Equality of Rights between Women and Men for Sustainable Development in the ECOWAS Region (2015) was adopted to strengthen the harmonisation of national legislation with international standards on women’s rights. As yet, there are no similar sub-regional legal instruments in the Central and North Africa sub-regions.
On the African continent, as well as at the sub-regional level, the SIGI reveals significant variation among national legal frameworks. It is however possible to group African countries based on the similarity of their legal frameworks using the SIGI Legal Index, an aggregation of the SIGI’s legal variables ( Box 2.1). These clusters, or groupings, permit analyses of the strengths and weaknesses in African countries’ legal frameworks in terms of gender-based discrimination. This section presents the SIGI Legal Index, the findings of cluster analysis undertaken using the Legal Index including specific information on the individual character of the legal frameworks in each cluster, and a detailed analysis of legal frameworks linked to six of the SIGI’s indicators. The six indicators profiled include four – “Workplace rights”, “Violence against women”, “Female genital mutilation” and “Child marriage” – in which the legal frameworks of African countries need strengthening as a matter of urgency to guarantee women’s and girl’s equal rights; and two indicators – “Political voice” and “Access to financial services” – in which legal frameworks and reforms have established a strong basis for equality.
The SIGI Legal Index is created by aggregating one of the three types of variables that make up the SIGI legal variables, while excluding the others pertaining to attitudes and practices. The SIGI’s legal variables evaluate the level of discrimination in countries’ formal and informal1 legal frameworks across 15 of the SIGI’s 16 indicators.2 Using a clustering technique, countries’ scores on the Legal Index at the dimension level are used to create groupings of countries with similar scores, which indicate similarities regarding their legal frameworks. The result of the analysis points to four distinct clusters of countries, each with specific characteristics.
← 1. Informal laws are laws defined by the customs, religions and traditional practices observed among a specific community, outside of the formal legal code that may or may not be written.
← 2. The Missing Women indicator does not include a legal frameworks component.
Each of the four clusters of countries identified by the SIGI Legal Index reveals distinct patterns in their scores across the four SIGI dimensions, with some similarities among the clusters. Each cluster presents a high score in the “Restricted access to productive and financial resources” dimension relative to the other dimensions’ scores. This demonstrates that the legal frameworks governing access to resources, such as land, non-land assets, workplace rights and access to finance, are of particular importance for all countries of the region. Similarly, all of the clusters show relatively high scores in the “Discrimination in the family” dimension, which implies that laws on child marriage, divorce, inheritance and household responsibilities merit deeper investigation. Performance of the clusters is mixed in the “Restricted civil liberties” and “Restricted physical integrity” dimensions, with some clusters performing relatively well, while others present high levels of discrimination (Table 2.1).
Among the four clusters, Cluster 1 has on average the lowest score for each of the four SIGI dimensions, representing a medium level of discrimination. This cluster performs particularly well on the “Restricted civil liberties” dimension with a score of 28, indicating the existence of legal frameworks for citizenship rights and freedom of movement that do not discriminate on the basis of gender. For example, every country in Cluster 1 grants women and men, married and unmarried, the same rights to apply for passports and identity cards. The same cluster scores 38 in the “Restricted physical integrity dimension”, the higher score a result of the presence of national legal frameworks that fail to protect women from violence against women and female genital mutilation (FGM). The even higher score of 46 in the “Discrimination in the family” dimension is mainly the product of legal frameworks that do not adequately protect girls from child marriage and those that fail to endow women and men with the same rights and responsibilities in the household. The highest score of 49 in the “Restricted access to productive and financial resources” dimension is linked to high scores for these countries in the “Workplace rights” indicator, signifying the presence of legal discrimination against women in the workforce. For example, in Cluster 1, six6 of the 16 countries score 100 in the “Workplace rights” indicator, indicating that the legal frameworks do not provide women with equal rights to enter all professions, register businesses or work the same night hours as men.
Cluster 2 is characterised by high levels of discrimination in the “Discrimination in the family”, “Restricted access to productive and financial resources” and “Restricted civil liberties” dimensions. In the “Discrimination in the family” dimension, the score of 52 reflects discriminatory laws regarding household responsibilities and early marriage. For example, three7 of the eight countries in Cluster 2 do not grant women the same legal rights as men to be the head of household. Cluster 2 scores 56 in the “Restricted civil liberties” dimension, reflecting high levels of discrimination in the “Access to justice” and “Freedom of movement” indicators. Of particular note is the fact that five8 of the eight countries in this cluster do not guarantee married women and married men equal rights in the passport application process. The highest score (73) relates to the “Restricted access to productive and financial resources dimension”, a result of laws that discriminate against women’s rights in the workplace. The dimension in which Cluster 2 performs best is “Restricted physical integrity” with a score of 42. However, this score also reveals significant legal discrimination against women and girls, especially in relation to FGM.
Cluster 3 is characterised by high scores in three of the four SIGI dimensions. In the “Discrimination in the family” dimension, the score of 60 is a function mainly of laws under the “Household responsibilities” indicator, which do not grant women the same legal rights and responsibilities as men within the household, particularly the right to be recognised as the head of household or the right to equal parental authority. For instance, in six9 of the cluster’s 17 countries, laws that grant women the legal right to be recognised as the head of household, do not apply to all groups of women. The highest levels of discrimination, with a score of 71, are found in the “Restricted physical integrity” and “Restricted access to productive and financial resources” dimensions. The former is the product of high scores in the three indicators for “Violence against women”, “Female genital mutilation” and “Reproductive autonomy”. As with the other three clusters, Cluster 3 scores highly in the “Workplace rights” indicator, leading to a high score in the dimension on “Restricted access to productive and financial resources”. In the “Restricted civil liberties” dimension, Cluster 3 achieves a score of 31 denoting a medium level of discrimination. This relatively low score is the product of low levels of discrimination in laws evaluated in the “Freedom of movement”, “Political voice” and “Citizenship rights” indicators. For example, in all but one10 of the Cluster’s countries, the legal framework guarantees women the same rights as men, regardless of marital status, to acquire, change and retain their nationality.
Cluster 4 is characterised by high levels of discrimination in three of the four dimensions. Unlike the other three clusters, Cluster 4’s highest dimension score is not found in “Restricted access to productive and financial resources”, but rather emerges in “Discrimination in the family”. This cluster’s very high score of 85 for this dimension is the result of very high levels of discrimination in three of the dimension’s four indicators: “Household responsibilities”, “Divorce” and “Inheritance”. For example, in 1011 of the 13 countries included in Cluster 4, the law does not provide daughters with the same rights as sons to inherit land and non-land assets. In the “Restricted civil liberties” dimension, Cluster 4 scores 58 – a score that derives from a high score in the “Citizenship rights” indicator and lower scores in the “Political voice” and “Freedom of movement” indicators. Regarding citizenship rights, nine12 of the cluster’s 13 countries do not guarantee married women the same rights as married men to retain their nationality. In the “Restricted access to productive and financial resources” dimension, the high score of 64 is owned to a similarly high score in the “Workplace rights” indicator and a very low score in the “Access to financial services” indicator. The cluster’s lowest score is found in the “Restricted physical integrity” dimension (54). This is the result of a relatively low score in the “Female genital mutilation” indicator relative to other indicators.
Eliminate laws that exempt customary law from legal prohibitions of discrimination, such as those included in constitutions.
Ratify the Maputo Protocol, CEDAW and other relevant sub-regional legal instruments, such as the Southern African Development Community’s (SADC) Gender Protocol (2008).
Align national legislation with the standards set forth by these international, regional and sub-regional agreements.
Legal frameworks governing workplace rights in the region feature the highest levels of discrimination
In Africa, legal discrimination against the rights of women in the workplace is a salient issue. For three of the four clusters discussed in the previous section, the “Workplace rights” indicator has the highest level of discrimination; for Cluster 2, it has the second highest level. This indicator evaluates the legal barriers that restrict women’s labour force participation and hinder equality in the workplace. These legal barriers and the absence of laws guaranteeing equality in this area have serious consequences for women’s economic empowerment in practice. They prevent them from entering the labour market, hinder their advancement, impede the recognition and redistribution of care responsibilities among men and women, and enable persistent gender pay gaps. While discrimination in the legal frameworks governing workplace rights is particularly high, recent legal reforms have been undertaken to change this reality.
The landscape of legal frameworks on workplace rights
In Africa, all but four countries13 have national legislation that prohibits discrimination on the basis of sex in employment. Legal prohibitions on discrimination in employment are often found in constitutions and labour codes. For example, the Labour Code of Burkina Faso prohibits all discrimination in employment including on the basis of sex and pregnancy (Article 4) (Government of Burkina Faso, 2008[4]). In Ethiopia, the Constitution (Article 35(8)) outlines women’s rights to quality employment, promotion, pay and the transfer of pension entitlements, while the Labour Code (Part 6, Chapter 1) prohibits discrimination on the basis of sex in employment and payment (Government of Ethiopia, 1994[5]; Government of Ethiopia, 2019[6]). Under the Decent Work Act (2015), discrimination is prohibited on broad grounds in Liberia including on the basis of sex, gender identity, sexual orientation, marital status, family responsibilities, and previous, current or future pregnancy or breastfeeding (§ 2.4 and § 2.7) (Government of Liberia, 2015[7]).
In Africa, 28 countries14 have laws that prohibit women from entering certain professions. Many such legal restrictions concern jobs deemed arduous and/or hazardous. For example, the Labour Codes of Angola, Cameroon, Chad, Djibouti, The Gambia, Kenya and others allow ministries, such as those overseeing labour and/or health, to determine the list of jobs prohibited for women. More generally, Act No. 12 of 1378 on the Labour Relations Act of Libya states that “women workers shall not be employed in types of work that are unsuited to their nature as women, to be defined in regulations issued by the General People’s Committee” (Chapter 3, Section 24) (Government of Libya, 2010[8]). These laws are rooted in stereotypes regarding men’s and women’s abilities, specifically physical abilities, as well as in traditional gender roles. Although legislation prohibiting women from entering certain sectors is often framed around concern over women’s health, it is inherently discriminatory and serves to promote persistent gender-based occupational and sectoral segregation.
In many African countries, formal legal systems coexist alongside informal ones, which may be customary, religious and/or traditional in nature (Box 2.2). These informal laws can prevent women from entering certain professions and establish a requirement for a husband to grant permission before a women can take a paid job and/or register a business. For example, under some customary laws in Zimbabwe, women have the legal status of minors rather than legal adults, regardless of their age, impacting their ability to choose professions and/or register a business without their father’s or husband’s approval (FAO, n.d.[9]). Some customary legal systems in the region, by positioning men as the heads of household, contribute to the shrinking of women’s economic opportunities by limiting their choice and autonomy to seek employment and training as well as access to resources (Nesbitt-Ahmed and MacLean, 2017[10]).
The legal frameworks of many African countries are pluralistic and include customary, religious and common as well as civil laws. As a result of this legal pluralism, customary law has a significant impact on the lives of many, especially women. While no uniform set of customary laws exists, and customary legal systems vary across communities and ethnic groups, there are indeed some similarities among customary laws, especially pertaining to the status of women (Ndulo, 2011[11]). Customary law is typically applied in relation to issues of marriage, inheritance, guardianship, appointment to traditional positions and age of majority, and many of these laws tend “to see women as adjuncts to the group to which they belong, such as a clan or tribe, rather than equals” (Ezer, 2016[12]). In such cases, customary law has broad-reaching implications for women’s and girl’s rights and opportunities.
Most African Constitutions include prohibitions on discrimination and introduce equal rights for men and women, while also granting recognition to customary laws. For example, the Constitutions of Botswana, Lesotho and Zambia exempt customary law from their prohibitions on discrimination. Conversely, the Constitution of Kenya specifically invalidates any law, including customary law, that is inconsistent with the Constitution. In many Africa countries, conflict between customary law and constitutional, common and civil law, remains a major challenge.
Recent legal reforms
While the landscape of legal frameworks governing women’s workplace rights in Africa is characterised by significant gender-based discrimination, over the last four years a number of African countries have enacted legislation to eliminate discrimination and promote equal rights between men and women in the workplace. For example, in Senegal, legislation was passed to prohibit discrimination in recruitment on broad grounds – such as on the basis of sex, pregnancy, family situation and more – and outlines the responsibility of employers to observe equal treatment in terms of remuneration, training and conditions of employment (Articles 19-20) (Government of Senegal, 2019[13]). In 2018, Sao Tome and Principe passed Law No. 6/2019 approving the Labour Code which included a number of gains for women in terms of their workplace rights. The law prohibits discrimination on the basis of sex (Article 21), includes provisions stipulating equal pay for men and women (Article 22), extends maternity leave to 14 weeks (Article 249) and prohibits discrimination against women on the basis of maternity leave (Article 262) (Government of Sao Tome and Principe, 2019[14]). Zambia also extended maternity leave to 14 weeks in alignment with international standards (Article 41) and specifically prohibits dismissal or demotion during or in relation to maternity leave (Article 43) (Government of Zambia, 2019[15]). In 2019, Ethiopia’s Labour Proclamation No. 1156/2019 included a prohibition on discrimination on the basis of sex in employment and increased paid maternity leave from 90 to 120 days (Part 6, Chapter 1) and introduced paid paternity leave of three days (Part 5, Chapter 2) (Government of Ethiopia, 2019[6]). Finally, in Guinea, the revised Code Civil specifically states that each spouse may freely earn a wage as long as no special legal provisions state otherwise (Article 291), thereby establishing the right of married women to work for pay (Government of Guinea, 2019[16]).
Ensure that legislation clearly prohibits discrimination in employment, promotions, remuneration, hiring and dismissal based on sex, gender identity, sexual orientation, pregnancy, family and marital status.
Repeal legal provisions that prevent women from entering certain professions and industries (in alignment with ILO Convention No. 111).
Ensure that paid maternity leave entitlements are aligned with the international standard of 14 weeks (in line with ILO Convention No. 183), and consider the enactment and extension of paid paternity and parental leaves.
Legal frameworks in Africa do not yet provide comprehensive protection from violence against women and other harmful practices such as FGM and child marriage
The SIGI indicators on violence against women, FGM and child marriage assess the formal and informal legal frameworks governing harmful practices faced by women and girls. In its evaluation of legal frameworks on violence against women, the SIGI evaluates whether legal frameworks protect women from violence, including domestic violence, rape and sexual harassment. In the case of FGM, the SIGI’s legal frameworks component assesses whether the laws criminalise FGM and include penalties for practitioners. For child marriage, the SIGI considers whether the legal framework sets the minimum age of marriage for women and men at 18 years without exceptions. Each of the clusters discussed in this chapter record high levels of discrimination in their legal frameworks on both violence against women and child marriage. Regarding FGM, some differences exist with scores ranging from 47 for Cluster 1 to 91 for Cluster 2. These scores reveal a pressing need for stronger legislative efforts to close legal loopholes and prohibit violence against women and girls, in order to ensure women’s and girl’s physical integrity and overall health.
The landscape of legal frameworks on violence against women, FGM and child marriage
Of the 54 African countries, 3415 have laws that outline criminal penalties for domestic violence. The most common forms of abuse covered in these legal frameworks are physical abuse followed by sexual abuse. Nevertheless, some countries take a more expansive approach to domestic violence, covering not only physical and sexual abuse, but also economic and psychological abuse. For example, Algeria’s Law No. 15-19 penalises physical, sexual, psychological and economic abuse committed by current and former spouses; however, it does not cover abuse committed by partners outside of marriage or other household or family members (Government of Algeria, 2015[17]). In Burundi, Law No. 1/13 on the Protection of Victims and the Prevention and Punishment of Gender-Based Violence (2016) defines domestic violence as all acts of physical, sexual, psychological or economic violence occurring within the family or the family home (Article 2) (Government of Burundi, 2016[18]).
Laws banning FGM as a harmful practice can serve to delegitimise the practice, which in turn plays an important role in changing social norms and beliefs. Nevertheless, 21 African countries16 do not have criminal laws addressing FGM as a harmful practice. Some of the countries without laws criminalising the practice have high prevalence rates of FGM; for example, Sierra Leone and Mali have prevalence rates of FGM greater than 85% (UN Statistics, 2021[19]). Informal customary, traditional and religious laws in many countries support the continued practice of FGM as a rite of passage into womanhood or preparation for marriage, and women and girls who have not undergone FGM may face stigma (OECD Development Centre, 2018[20]; Berg and Denison, 2013[21]).
In regard to legal discrimination and marriage, 11 African countries17 have laws outlining different legal ages of marriage for women and men. In each of these countries, the legal age of marriage for women is lower than the legal age for men, and in four countries is as low as 15 years.18 Among the 42 countries that set the same legal age of marriage for both women and men, only ten19 have laws that do not include legal exceptions that allow individuals below the minimum age to marry with the consent of parents, guardians, judges and/or courts (Table 2.2). In addition to formal statutory laws, informal customary, religious and traditional laws constitute an important part of the social institutions governing marriage in many African countries. For example, Burkina Faso, Ghana, Mozambique, Niger, Sierra Leone, Uganda and Zimbabwe all have mixed legal systems which include both common/civil and customary law (UNICEF, 2020[22]). In Uganda, for example, marriages conducted under customary law are officially recognised (OECD Development Centre, 2019[23]).
Recent legal reforms
Since 2018, a number of African countries have undertaken legislative reforms to increase protection from gender-based violence in an effort to eliminate violence against women. For example, in 2018, Eswatini and Morocco enacted legislation to address gender-based violence. In the former country, the Sexual Offenses and Domestic Violence Act (Act No. 15 of 2018) provides protection from sexual and domestic violence, which includes physical, sexual, psychological and economic abuse, among other forms (Government of Eswatini, 2018[24]). In the latter country, Law No. 103.13 established a normative framework to address violence against women (Government of Morocco, 2019[25]). Additionally in 2018, Law 025-2018 on the Penal Code of Burkina Faso provided a definition of domestic violence for the first time incorporating physical, psychological, sexual, economic and spiritual abuse (Government of Burkina Faso, 2018[26]). In 2019, Liberia’s Domestic Violence Bill became law criminalising domestic violence, including physical, mental and sexual abuse, neglect and exploitation (Government of Liberia, 2019[27]). In addition, in 2019, Madagascar passed Law No. 008/2019, which provides for the prevention and prosecution of gender-based violence and established women’s and girl’s rights to physical integrity (Government of Madagascar, 2019[28]). These legislative efforts are a critical aspect of countries’ efforts to address and end violence against women.
Similarly, since 2018, legal reforms have adopted and/or increased protections for women and girls from FGM. For example, Law 025-2018 on the Penal Code of Burkina Faso criminalises the practice of FGM, prescribing penalties for all practitioners (Government of Burkina Faso, 2018[26]). In 2020, through an amendment to Criminal Law (Article 141), Sudan criminalised FGM, which is now subject to fines and imprisonment (Lugiai et al., 2021[29]). Furthermore, in 2021, Egypt strengthened its Penal Code (Article 242 bis), banning FGM and increasing criminal penalties, specifically the time of imprisonment (Farouk, 2021[30]). In Sierra Leone, despite a lack of laws addressing the practice, in 2019 the government banned FGM (Batha and Peyton, 2019[31]). Finally, in 2021, the High Court of Kenya upheld a ruling stating that the country’s Prohibition on Female Genital Mutilation Act (No. 32 of 2011) was constitutional following a legal challenge brought by a medical doctor (High Court of Kenya, 2021[32]).
New legislation in Africa aims to protect children and especially girls from child marriage. For example, in Morocco, Law No. 103.13 (2018) includes protections from forced marriage for minors under 18 years of age and outlines criminal penalties for persons facilitating such unions (Government of Morocco, 2019[25]). In Côte d'Ivoire, Law No. 2019-570 of 26 June 2019 set the legal age of marriage at 18 years for both men and women (Government of Côte d'Ivoire, 2019[33]). Finally, in 2019, the Supreme Court of Tanzania upheld a ban preventing parents from arranging the marriage of girls as young as 14 years, but amendments to legislation to formalise this ban have yet to be enacted (Girls Not Brides, 2019[34]).
Ensure that legislation on domestic violence proscribes criminal penalties and covers violence from current and former partners regardless of marital status as well as family members.
Enact legislation that utilises an expansive definition of domestic violence that includes physical, sexual, psychological and economic abuse in the spirit of the Maputo Protocol’s call for legislative measures “to ensure the prevention, punishment and eradication of all forms of violence against women” (Article 4).
Align domestic legislation on FGM with international, regional and sub-regional commitments and standards such as CEDAW General Recommendation No. 14 and the Maputo Protocol (Article 10).
Pass legislation to ban the practice of FGM and establish criminal penalties for all practitioners, including but not limited to parents and medical practitioners as well as anyone facilitating the practice.
Set 18 years of age as the legal minimum age of marriage for both boys and girls and develop enforcement mechanisms and strategies to prevent child marriage in alignment with both the African Charter on the Rights and Welfare of the Child and the Maputo Protocol.
Enact marriage laws that include provisions that establish requirements for the consent of both spouses and proof of age before marriage licenses are issued.
Legal frameworks in Africa include provisions to protect and promote women’s political voice though certain areas need strengthening
The SIGI’s Political Voice indicator assesses the extent to which legal frameworks discriminate against women’s participation in political life as both candidates and voters. Women’s meaningful participation in politics and public decision making has a significant impact on a number of development indicators in addition to being a key component of truly representative governance. All of the clusters discussed in the previous section perform relatively well in the “Political voice” indicator with scores revealing medium levels of discrimination. While legal frameworks in this area are well developed, legislative efforts in recent years have led to stronger protections for women’s political voice in the region.
Recent legal reforms
Since 2018, a number of African countries have enacted legislation to protect and promote women’s political representation. These include, Chad, which adopted Law 22/2018 and Law 30/2019, establishing a progressive quota of 30% for women’s representation in elected offices. Furthermore, Chad’s Constitution obliges the state to promote women’s political rights and representation (Article 34) (Government of Chad, 2019[35]). In 2018, Guinea-Bissau passed the Parity Law which requires a minimum of 36% women candidates on party lists for national and municipal elections (UNIOGBIS, 2018[36]). Djibouti’s Law No. 2017/AN/18/7th amended Law No. 192/AN/02/4th increasing the quota for women from at least 10% to at least 25% in elected positions and the state administration (Government of Djibouti, 2019[37]). In 2019, Guinea adopted the Law on Parity which states that women must make up 50% of candidates on lists for elected positions at both national and local levels as well as in public institutions (UN Women, 2019[38]). In South Sudan, the Revitalized Agreement on the Resolution of the Conflict in the Republic of South Sudan, signed in September 2018, sets various quotas for women’s representation in the executive and legislative branches of government as well as commissions and ministerial positions (IGAD, 2018[39]).
The landscape of legal frameworks on political voice
Every African country provides women and men with equal rights to hold legislative and executive public offices and to vote regardless of marital status. However, significant differences in legislative frameworks arise regarding the matter of temporary special measures to promote women’s political representation. In 34 of the 54 countries,20 legal quotas21 exist to promote women’s political participation in lower houses of parliaments/legislatures, and in nine countries22 voluntary political party quotas are in place (see Chapter 5). Such quotas are not in place in 13 African countries.23 Temporary special measures such as quotas play a decisive role in women’s political representation on the continent. On average, women’s representation in the parliaments of African countries with quotas of any kind is 10 percentage points higher than in those that have no quotas. Furthermore, the countries with the highest levels of representation of women in lower houses of parliament have quotas in place (Figure 2.2). Indeed, 18 of the top 20 countries in terms of women’s political representation in lower houses of parliament have some kind of quota in place, and 13 of these countries have legislated/constitutional quotas. In Rwanda, the African country with the highest percentage of women in its lower house – and which ranks first at the global level in this respect – the Constitution (Article 10) grants 30% of posts in decision-making bodies to women. Organic Law 03/2010/OL (Article 109) outlines the process for appointing 24 female Deputies in administrative entities, and Law 27/2010 (Article 156) outlines the process for the quota to be met in District Councils and the Council Bureau of Sectors (Government of Rwanda, 2015[40]; Government of Rwanda, 2010[41]).
The design of temporary special measures, enforcement, political will and the overall structure of the electoral system, each play a fundamental role in determining whether such measures, including laws, will promote parity in representation both effectively and sustainably. For example, constitutional and legislated quotas in Eswatini, which do not include enforcement mechanisms, were not respected in the last election cycle and the percentage of women in both the House of Assembly and Senate were below the minimum levels set by law (IDEA and Gender Links, 2021[43]). Similarly, in Kenya, the minimum level of representation of women set by the Constitution was not achieved during the 2017 elections (IDEA and Gender Links, 2021[43]). When legislated or constitutional quotas are not met, there may be no consequences, as is the case in Eswatini; candidates may be rejected by the Constitutional Court, such as in Mali and Niger, or by electoral management bodies, as permitted in Mauritania; or the parliament may face court orders, as in Kenya (IDEA and Gender Links, 2021[43]). Furthermore, in the absence of legislated/constitutional quotas, when voluntary political party quotas are the only measures in place under proportional representation systems, women’s representation depends directly on those parties’ levels of representation. As such, party quotas may not be the answer to achieving and sustaining parity in political representation. A challenge remains for many African governments to design temporary special measures that can effectively and sustainably promote gender equal representation in the context of their individual political systems.
While women’s political voice is relatively well protected, informal laws remain a source of discrimination in some African countries. For example, in Benin, the customary law of Dahomey establishes that women lack legal power and find their importance in the domestic sphere (Article 27) (IDEA and Gender Links, 2021[43]). This status set forth in customary law can have serious implications for women’s autonomy to engage fully in public and political life. In Ghana, while some regional chieftaincy bodies recognise affiliated Queen Mothers and Female Chiefs, the government-recognised National and Regional Houses of Chiefs have inducted no women as members (Government of Ghana, 2020[44]). Similarly, in Sierra Leone, customary practices prevent women from serving as paramount chiefs – a parallel system of tribal government in operation in each of the country’s 190 chiefdoms (Government of Sierra Leone, 2019[45]). Finally, in Niger, customary law excludes women from participating in traditional chieftainship (CEDAW, 2017[46]).
Enact legislation creating temporary special measures aimed at accelerating gender-equal representation in electoral processes at all levels in alignment with CEDAW General Recommendation No. 23.
Enforce and monitor existing temporary special measures. Support electoral bodies and Constitutional Courts in fulfilling their obligations to enforce legislated and constitutional quotas. Include substantial financial penalties for political parties failing to include a sufficient percentage of women on party lists.
Align national targets for women’s representation with those set forth in regional legal instruments. For example, the SADC Protocol on Gender and Development (2008) calls on states to use affirmative action measures to reach at least 50% women in “decision-making positions in the public and private sectors”.
Legal frameworks in Africa have evolved over the last 50 years to protect women’s access to financial services
The SIGI’s “Access to financial services” indicator assesses the levels of discrimination in legal frameworks regarding women’s rights to open an account and obtain credit at a formal financial institution, while taking into account both formal and informal – customary, religious or traditional – laws. Legal barriers to women’s access to financial services have significant ramifications for their autonomy, bargaining power in the household and ability to pursue economic activities such as entrepreneurship (see Chapter 4). For three of the four clusters discussed in the previous section, the “Access to financial services” indicator features the lowest level of discrimination compared to all other indicators. This is not the case for Cluster 3, as three countries24 included in the cluster do not guarantee women the same rights as men to open a bank account in a formal financial institution.
Recent legal reforms
On the African continent, formal legal discrimination against women’s access to financial services diminished significantly between 1971 and 2021 (Figure 2.3). In 1971, women were able to open a bank account in the same way as a man in 29 of the 54 African countries. In 2021, this was the case in 47 of the 54 countries. Furthermore, in the last four years, two African countries25 have enacted legal reforms to guarantee women’s access to financial assets and services (World Bank, 2021[47]). In Mozambique, in 2019, legislation eased women’s access to credit by prohibiting discrimination based on gender in financial services. The same year, the High Court of Eswatini ruled that the common law which previously denied married women the right to act without their husband’s consent was unconstitutional and subsequently struck down the parts of the law that allowed Swazi customary law to govern marital power and spousal property rights (United States Department of State, 2021[48]). In 2018, Guinea included incorporated into its new Penal Code similar prohibitions against gender-based discrimination in financial services. Also in 2018, an amendment to the Family Code of the Democratic Republic of the Congo allowed women to sign contracts and open a bank account without spousal consent (World Bank, 2021[47]).
Source: (World Bank, 2021[47]), Women, Business and the Law, https://wbl.worldbank.org/en/wbl-data.
The landscape of legal frameworks on access to financial services
All African countries grant women the same rights as men to access credit regardless of marital status. In terms of access to bank accounts, three countries26 do not grant married women the same rights as married men to open a bank account in a formal financial institution. The Civil Codes in each of these countries introduce special restrictions for women that are discriminatory in nature. Among the 51 remaining countries that grant women and men the same rights, some have legal frameworks that expressly prohibit discrimination in financial services. For example, South Africa’s Promotion of Equality and Prevention of Unfair Discrimination Act (Act 4 of 2000) specifically prohibits policies and conduct that unfairly limit the access of women to finance (Article 8e) (Government of South Africa, 2000[49]). In addition to the law, South Africa’s Code of Banking Practice (2012), a voluntary code, establishes standards for financial services including a prohibition of discrimination on the basis of marital status, gender, age or race in banking services (Section 6.2) (Banking Association of South Africa, 2012[50]). In Angola, the Central Bank of Angola’s Notice 02/2011 prohibits financial institutions from differentiating their products and services based on individuals’ gender, civil status and other characteristics (Article 5) (Banco Nacional de Angola, 2011[51]).
While many countries have formal laws in place to provide women and men with equal rights to financial services, informal laws continue to discriminate against women in this regard. Informal customary, traditional and religious laws that discriminate against women’s legal rights to open accounts and access credit are closely linked to women’s status under these laws as subordinates to their husband and male guardian. For example, in Cameroon, some customary legal systems regard women as the legal property of their husbands (United States Department of State, 2016[52]). Furthermore, in Lesotho, under customary law women have the legal status of minors rather than adults of legal majority, regardless of age, which restricts their access to assets and credit as well as their ability to enter into contracts without a man’s assistance as her guardian (FAO, n.d.[53]; OECD Development Centre, 2019[54]). Furthermore, formal and informal laws hindering women’s ownership of land and non-land assets impose additional barriers to access to credit as collateral is often a requirement (see Chapter 4 for more details).
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Notes
← 1. Sudan is the only African country that has yet to sign CEDAW.
← 2. Botswana, Egypt, Eritrea and Tunisia have not yet signed the Maputo Protocol.
← 3. All member countries except Mauritius have signed the Protocol.
← 4. Passed by the East Africa Legislative Assembly, which include five partner countries: Burundi, Kenya, Rwanda, Tanzania and Uganda.
← 5. Signed by all 15 member countries.
← 6. Benin, Burkina Faso, Central African Republic, Ethiopia, Sao Tome and Principe, and Senegal.
← 7. Libya, Madagascar and Seychelles.
← 8. Madagascar, Malawi, Mauritius, Seychelles and Zambia.
← 9. Angola, Chad, Lesotho, Mali, Niger and Sierra Leone.
← 10. In the Republic of the Congo, married women do not have the same rights as married men to acquire, change or retain their nationality under the Nationality Code of 20 June 1961.
← 11. Algeria, Burundi, Comoros, Egypt, The Gambia, Mauritania, Morocco, Sudan, Tanzania and Tunisia.
← 12. Algeria, Burundi, Comoros, Egypt, Guinea, Mauritania, Somalia, Togo and Tunisia.
← 13. Botswana, Republic of the Congo, Nigeria and Sudan.
← 14. Angola, Benin, Burkina Faso, Burundi, Cameroon, Central African Republic, Chad, Côte d'Ivoire, Djibouti, Egypt, Equatorial Guinea, Ethiopia, Gabon, Guinea, Guinea-Bissau, Lesotho, Libya, Madagascar, Mali, Mauritania, Morocco, Nigeria, Republic of the Congo, Senegal, Sierra Leone, Somalia, Sudan and Tunisia.
← 15. Algeria, Angola, Benin, Botswana, Burkina Faso, Burundi, Cabo Verde, Central African Republic, Chad, Comoros, Djibouti, Eswatini, Ethiopia, The Gambia, Ghana, Guinea-Bissau, Kenya, Liberia, Madagascar, Malawi, Mauritius, Morocco, Mozambique, Namibia, Nigeria, Rwanda, Sao Tome and Principe, Senegal, Sierra Leone, South Africa, Tunisia, Uganda, Zambia and Zimbabwe.
← 16. Algeria, Angola, Cabo Verde, Comoros, Equatorial Guinea, Eswatini, Lesotho, Liberia, Libya, Madagascar, Malawi, Mali, Mauritius, Morocco, Namibia, Rwanda, Sao Tome and Principe, Seychelles, Sierra Leone, Tunisia and Zimbabwe.
← 17. Burkina Faso, Burundi, Cameroon, Gabon, Guinea, Liberia, Mali, Republic of the Congo, Senegal, Seychelles and Tanzania.
← 18. Cameroon, Gabon, Seychelles and Tanzania.
← 19. Chad, Democratic Republic of the Congo, Egypt, the Gambia, Ghana, Kenya, Malawi, Mauritania, South Sudan and Rwanda.
← 20. Algeria, Angola, Burkina Faso, Burundi, Cameroon, Central African Republic, Chad, Djibouti, Equatorial Guinea, Eritrea, Eswatini, Gabon, Guinea, Guinea-Bissau, Kenya, Lesotho, Liberia, Libya, Mali, Mauritania, Morocco, Niger, Republic of the Congo, Rwanda, Sao Tome and Principe, Senegal, Somalia, South Sudan, Sudan, Tanzania, Togo, Tunisia, Uganda and Zimbabwe.
← 21. Enshrined in national constitutions and/or legislation such as electoral laws.
← 22. Botswana, Cameroon, Côte d'Ivoire, Equatorial Guinea, Ethiopia, Malawi, Mozambique, Namibia and South Africa.
← 23. Benin, Cabo Verde, Comoros, Democratic Republic of the Congo, Egypt, The Gambia, Ghana, Madagascar, Mauritius, Nigeria, Seychelles, Sierra Leone and Zambia.
← 24. Chad, Gabon and Nigeria.
← 25. Guinea and Mozambique.
← 26. Chad, Gabon and Niger.