2 Legal constraints to implementation of the women's policy.
The constitution of the Federal Democratic Republic of Ethiopia, ratified on December 8, 1994, unequivocally guarantees gender equality in social and economic matters (see box 2.1). It also incorporates international agreements ratified by Ethiopia. (1) Article 13 of the constitution requires all government organs to comply with and interpret the provisions "in conformity" with international human rights conventions to which Ethiopia is a party. Regional governments also need to ensure that their laws conform with the constitution and do not discriminate on grounds of gender. In Ethiopia, therefore, the broad legal framework within which legislation or regulations may be issued is clear: discrimination on the basis of gender is unconstitutional.
Within the context of these recently granted constitutional rights, this chapter identifies and analyzes the legislative provisions that have a direct impact on women's access to economic resources or that affect their participation in development activities.
Box 2.1 Gender Equality and the 1995 Ethiopian Constitution Article 35 of the 1995 Constitution of Ethiopia, entitled Women's Rights, consists of nine subprovisions. It accords women equal rights to all rights guaranteed by the constitution. The following provisions relate to women's economic status: Employment. Article 35 'equires equality in all matters related to employment. Article 42.1(d) supports the right of female workers to equal pay for comparable work. Property. Women are accorded equality in acquisition and management of property, including land, and equal participation in policy decisionmaking. Health. Special attention is given to maternity rights by guaranteeing women the right to plan families and by requiring the provision of maternity leave. Customary practices. The state is obliged to prohibit laws or customary practices that harm women. Affirmative action. Article 35(3) permits affirmative and remedial measures to rectify the consequences of historical discrimination against Ethiopian women.
Five broad areas of legal constraints are critical in designing and implementing development interventions. Each involves a different set of socioeconomic considerations and competing interests that must be examined. Understanding the differences between them helps to clarify the nature of the responses necessary in each case. These constraints fall under the following themes:
* Access to economic resources within the home
* Access to economic resources outside the home through participation in the informal labor market
* Access to land and other natural resources
* Rights to organize into groups for participation in development activities and
* Access to dispute settlement remedies.
Economic Resources within the Home
Women, given their relatively low educational status and lack of skills, normally find that their best access to economic resources is through the household. They may inherit resources upon birth, receive gifts upon marriage, or acquire control of household property as wives or daughters or through the division of property upon divorce. However, women's access to economic resources in rural Ethiopia is complex: de jure laws have little or no impact on the majority of rural households that continue to apply customary, religious, and traditional practices in personal relationships. Moreover, customary practices vary from region to region, further increasing the complexity of understanding women's economic status within rural households. This section examines the economic rights of rural women, analyzing the formal legislative framework, examining its impact, and describing the de facto situation on the ground.
Until 1960, customary laws governed all personal matters (inheritance, wills, marriage, divorce, property division, and child maintenance and custody). These laws found their authority in a variety of sources. Muslims were governed by the sharia, and their disputes were settled in sharia courts. Among Christians, customary practices were codified in the Feteha-Negast and were applied by family arbitrators (the Feteha-Negast is the traditional legal code, or the law of kings, which bases the divine right of kings on the scriptures; see Pankhurst 1992: 23). The Oromos applied the principles of the gada system, which sets rules governing the social and economic lives of people. In addition to the sharia, the Afaris also applied the abukratie or Afar Ada law--an unwritten set of customary laws--in disputes adjudicated by clan leaders or elders.
In 1960 the civil code attempted to modernize the legal framework governing social structures and relationships "in order to keep pace with the changing circumstances of the world" (proclamation 165: v). It invalidated customary or religious laws concerning personal matters governed by the code (article 3347[i]). Customary laws lost their status as law and were relegated to the level of customary practices. Along with this, a number of provisions that discriminated against women lost their status as law. Therefore, the civil code, which was enacted before the 1995 constitution, governs all personal matters, including marriage, divorce, division of household property, maintenance and custody, and inheritance.
Property during Marriage
The civil code recognizes two types of properties in marriage--personal and common. Common property includes property acquired during the marriage or the income of either spouse during the marriage, and all property is deemed to be common, unless one spouse proves that he or she is the sole owner (article 635[i]). No spouse has the right to exempt unilaterally any property deemed to be common property, unless by agreement with the other spouse. (2)
The recognition of common or matrimonial property in marriage is a valuable right for women. It gives them a share of all property acquired during the marriage irrespective of whether they contributed financially to its acquisition or not. Take two poor households, one in Ethiopia and one in a legal regime that does not recognize common property. Assume that both households receive a piece of land under a resettlement program and that, as is the practice, the land is registered in the name of the head of the household--the husband. In Ethiopia, half of the land would be held by the wife, because it is part of the common property of the household (article 652). Moreover, as long as it is common property, the husband may not alienate it, without his wife's consent (article 658). In the other legal regime, the property belongs to the person in whose name it is registered, in this case, the husband. He may sell it, give it to his friends, or waste it; the wife has no rights over the property because it is part of the husband's personal holding.
In Ethiopia, salaries are also presumed to be part of the household's common property, even though it is under the control of the wage earner, and each spouse has a right to receive proper accounts on its use (article 654). The inclusion of the salary of either spouse in the common property of a household is also useful to women. Usually, such income would belong to the wage-earning spouse, typically the husband, and the wife would have no control over the husband's income. In Ethiopia, the wife may equally share the income of her husband, even if she does not bring any resources to the family. By law, therefore, the wife has much greater access to property acquired during marriage than before it.
The civil code, however, discriminates against the wife by unilaterally declaring the husband to be the head of household. (3) It states that unless otherwise provided by this code, "the wife owes him obedience in all lawful things which he orders," although it requires that both spouses owe each other respect, support, and assistance (articles 635 and 636). It also states that unless the husband is in a position to provide his wife with servants, she is bound to attend to household duties (article 646). Unless the contract of marriage states otherwise, the husband is deemed to be the administrator of household resources (article 646 in conjunction with article 626). Although the husband is expected to act judiciously and cannot alienate property except under certain conditions (article 658), the law presumes that he has a superior hand in managing the financial resources of the household.
It has been argued that this authority must be read in the light of the general provision that recognizes the right of spouses to work out their financial arrangements and to enter into valid contracts, as witnessed by family arbitrators or by the court (article 650). The civil code appropriately leaves the allocation of household wealth in the hands of the persons most affected, permitting them to bargain and to determine the obligations of each spouse. However, in a situation where women inevitably bargain from a weaker position, freedom to make enforceable contracts could work against them. This is particularly true in rural Ethiopia where it would be natural for communities to protect patriarchal property rights through validly witnessed contracts. (4) But, in most cases, the contract of marriage is silent, and the position is then unequivocal: the husband is the head of household, he administers the household property, and the wife is responsible for all household duties (articles 629 and 650). (5) In reality, a wife has little or no control over the administration of household property. (6) A wife could request greater control by having such provisions included in the marriage contract, but this does not seem to be the practice.
Property upon Divorce
Rules for partition of property upon termination of the marriage are equitable: any valid contract of marriage or other contract that provides for unequal partition prevails (box 2.2). In the absence of such a contract, the provisions of the civil code apply, and common property is divided equally. Under the civil code, each spouse first takes his or her personal property. Where a spouse can prove that his or her personal property has been alienated and that the value has joined that of the common property, he or she may withdraw an equivalent value from the common property. In this case, the wife may exercise the first option to withdraw the money, a bias in favor of women. The administrator is also expected to indemnify the spouse whose personal or common property is prejudiced due to bad administration by the other person or in cases amounting to unlawful enrichment. Excluding such property, the rest of common property is divided equally between the two spouses. (7)
Box 2.2 Access to Remedies and Divorce In Sidame Korate, a woman named Meselech Kabado married and divorced three times. Each time, she obtained properties from her husbands. She died about the time she was to obtain properties from her third husband. It is now implied that she died because of a curse for failing to follow customary practices. In the South Omo, W/o Nigatuwa--married for 15 years, with three children surviving out of eight--sought divorce. She received no support from her former husband. Her pleas for justice to the kebele or the formal judicial system have not helped. The women commented that, "W/o Nigatuwa is the poorest and has received pain from her husband, but there is no one to help women." The men said that, "She is wandering here and there; nothing will be done for her." Source: PRA in the southern region, 1997.
Rights of Inheritance
As the law stands today, the civil code governs matters related to inheritance. These provisions are in line with the constitution and do not discriminate on the basis of gender; they grant full testamentary rights to women. But, the civil code limits the right of a spouse to transfer personal property by testament to the other spouse. Following traditional practice, the civil code maintains that property must pass to blood relatives and that a man or woman cannot inherit the property of his or her spouse (see box 2.3). When spouses make testamentary provisions in favor of their spouse, courts may reduce or invalidate the testament, when the testator is survived by descendants who are not also descendants of the spouse. Thus each spouse can retain his or her own personal property, half the common property, and any properties provided by valid contract between the spouses. The remaining personal property of the deceased passes, in the absence of a valid testament, to heirs related by blood. In this case, the children of the deceased are the first to be called to succession. If the the children themselves are deceased, the deceased person's descendants inherit the shares. If the siblings have no children, the parents of the deceased inherit equally.
Status of Wives in Polygynous Households
The civil code recognizes marriages conducted under customary laws but does not permit bigamy. (8) Thus, a second marriage is invalid even if it is accepted by customary law. However, the 1995 constitution recognizes marriages concluded under systems of religious or cultural laws. But, no enabling legislation has been passed to this effect, nor have the provisions of the civil code been repealed to reflect this constitutional mandate. Therefore, the status of polygynous marriages remains unchanged, raising a number of issues for wives in polygamous households (see box 2.4). Among Muslims, at least the sharia would recognize subsequent wives as having legal status, resulting in some access to property if the dispute is settled by the sharia. But among other communities that customarily practice polygyny, the second wife is in a very vulnerable legal situation because second or subsequent marriages are not valid either under the civil code or under customary laws.
Box 2.3 A Widow's Story W/o Askote is a widow with three daughters. She is the only female head of household in Koda kebele in the southern region. After her husband's death, her son took charge and started paying land tax, and they lived without any problems until nine years ago, when her son died. After the death of her son, the kebele took half of her land to use as a forestry site for the kebele, and she was allowed to use the other half without paying tax. Until 1997, she faced no problems. She was then asked to pay tax, which she did, becoming the legitimate owner of her plot of land. However, she felt that the men in the community did not accept her status as a landowner. She alleged that one night, five months ago, a neighbor set fire to the pile of teff (cereal) outside her home. Along with the teff, she lost birr 350 that she had received from her iqub because it was hidden in the pile of teff. In the morning, she reported to the kebele council and the wereda administration. The wereda administration asked the kebele to find the criminal and make him pay for the damage. However, the kebele has not taken any action. She perceived that it was very difficult "these days" for a woman to get any help or support, because women are not represented in the administration. Source: Participatory rural assessment in Kodo kebele in Shekitcho zone in the southern region, 1997. Box 2.4 Access to Land in Polygamous Households In polygamous households of Koda, wives have access, but no ownership rights, to small pieces of land, allocated to them by the husband. His favorite wife could receive a larger or better plot of land. Each wife may take care of her land, and, with the husband's permission, grow crops or vegetables. However, all wives have equal responsibility to work on the husband's land. Source: PRA in the southern region, 1997.
Conflict between the Civil Code and the Constitution
Although the civil code minimizes gender as a variable in the division of property between household members, a number of provisions continue to discriminate on the grounds of gender. In light of the 1995 constitution, the validity of these discriminatory provisions is an important question for women. Article 9.1 of the constitution states that "any law, customary practice, or a decision of an organ of state or a public official which contravenes this constitution shall be of no effect." This suggests that all provisions inconsistent with constitutional principles are invalid. However, as yet the offending civil code provisions have not been formally removed from the books. Also, the constitution confers authority for settling constitutional disputes on the Council of Constitutional Inquiry (articles 82-84). (9) It states that any court before which a matter is pending, or any litigants to a case involving constitutional interpretation, can ask the council to determine the constitutional issue. The council does not make the final decision, but it can make recommendations to the House of Federation, the ultimate decision-making authority. (10) The legal environment is therefore not fully clear when it deals with existing legal provisions that may be considered gender discriminatory.
This issue remains largely academic in nature, because the civil code has little or no impact on the lives of most rural households. The civil code is weakly enforced in personal matters, and rural Ethiopians continue to apply customary laws to their economic and social relationships. This is possible because disputes related to personal matters are resolved through an out-of-court process of family arbitration. In such cases, family members or people selected by the disputants act as arbitrators. They are rarely trained in the law, and most continue to apply customary rules. (This application is rarely challenged by women.) In the case of the Muslim community, disputes are settled by the sharia courts. This raises jurisdictional issues, but an unwritten understanding has been reached between the civil and sharia courts that the court first receiving the application exercises jurisdiction over the matter (Ashenafi 1996).
Table 2.1 provides a comparative perspective on customary rights to household property. These practices clearly give women far less equitable rights--both in management of the household as well as in division of property. A review of customary laws applicable to two important rural resources--livestock and land--throws further light on the de facto rights of women. Bride price, a common practice in some regions, is also discussed.
Across regions, large livestock belong to men in the poor communities where participatory rural assessments were conducted. Women, albeit to different degrees, are permitted to own goats, sheep, or chicken. In the south, among the communities interviewed, women do not own any animals. They said that, "Men own the cattle, and we own our clothes and the children." In Oromiya, women do not own property in their own rights. In Amhara, customarily wives own half of the common household property, but this is not practiced, at least in the communities interviewed during the participatory rural assessment. In Gambella, women only own trinkets and other small items. A woman herself may be inherited by her brother-in-law on the death of her husband. In Afar, a woman may receive livestock as a gift but is not allowed to sell the animals. However, even men cannot sell their livestock without permission from clan leaders.
In most regions, land is owned collectively, is allotted to households by the peasant association, and generally is not transferable. Land is allotted to a household and registered in the name of the head of the household--normally the husband--who determines its use. Where women are registered as heads of households, they are entitled to some land, although the parcels always seems to be smaller that those allotted to men. Generally, single women have no access to land, and divorced women lose their access to land once they cease to be a member of the household. A divorced or single woman then becomes dependent either on her brother-in-law or on her own parents. Thus, customary law severely restricts women's access to land. The recent land proclamation in Amhara is discussed later and may significantly increase the access of women to land. However, in all other regions the status quo continues.
The practice of paying a bride price is prevalent in some regions like Gambella, Oromiya, and the south. This common practice holds two significant implications for a woman's economic rights and her status in rural Ethiopia. The first is that payment of the bride price is perceived as receipt by the wife or her family of the wife's rightful share of the husband's family property. The second is that the bride price is traditionally seen as payment for the wife's labor or services and must be returned if such services are terminated due to any voluntary action taken by the wife (see box 2.5). During the marriage, therefore, in such communities, the wife can only control property that she receives as a gift, including any livestock donated by her family or her husband. She has no access to property belonging to the husband or his household. Men and women consider this an equitable practice, and in fact, some men argued during the participatory rural assessment that if women were given greater rights to property, the system of bride price should be abolished (see box 2.6).
Customary Practices and the Constitution
The 1995 constitution raises another important issue for women. The issue of customary laws dominated the country's legislative debates preceding passage of the new constitution. Two dominant opinions were voiced, reflecting the country's ethnic and religious plurality. One opinion required that all personal matters be governed by a uniform civil code; the other, by religious and customary laws, irrespective of personal consent. Article 34(7) of the 1995 constitution resolved this conflict by reserving the option to adjudicate disputes related to personal matters in accordance with religious or customary laws, if the parties to the disputes agree. The constitution requires that the details of such application be determined by law. There has been no enabling legislation so far, and without such legislation, customary practices related to personal matters covered by the civil code do not have the status of law.
Box 2.5 Bride Price Three men in Ariet participated in the discussion of bride price. They did not see why a woman would need to control property. Women have no property. Everything in the family belongs to the husband, including his wife, for whom he has paid considerably. The husband pays as much for a wife as he would for properties such as livestock. Like anybody who has full control over anything they pay for, husbands must have full control over their purchased wives. However, as long as the wife stays with him, she can have access to or share everything he owns. While discussing divorce, Ato Opod, a community member, brought up his own case. He married three times, divorcing his third wife because she nagged him. The bride price was returned to him, and he used it to marry off his son. However, the third wife was pregnant when they divorced and gave birth to a baby girl after she remarried. Ato Opod regrets having taken back the bride price, for now when the baby girl marries, her stepfather will claim the bride price. Source: PRA in Gambella, 1997.
With enabling legislation, customary practices related to personal matters could be validated, although there is debate within the country on whether enabling legislation can revive customary practices that are inconsistent with constitutional principles of gender equality. Some lawyers argue that enabling legislation can only permit the applicability of customary practices that are not discriminatory to women. Others argue that at the option of the parties, personal laws may be inconsistent with constitutional principles of gender equality. If the latter view prevails, this constitutional provision may be considered a step backward. Whatever the final position, given the political and cultural sensitivity of the issue in the aftermath of the civil war, the decision to leave the matter to personal discretion was, perhaps, the only solution to an intractable issue. (11)
Box 2.6 Attitudes to Customary Practices Men believe that customary laws are fair. Women speak of them with respect. Both men and women consider customary treatment of women as fair, although women feel that there is nothing wrong with the system but that the men could deal more fairly with women's issues. Source: PRA in Oromiya, 1997.
The saving grace, however, is that disputants need to consent to the application of customary laws. However, because women are unaware of their rights, few object to the application of customary laws, and men are likely to continue their ownership and control over economic resources. Even women who are legally literate must fight the largely conservative and older leadership in their communities to exercise their rights. This can, and often does, lead to ostracism. For women who are willing to bear social sanction, disputes are still settled by male and legally untrained family arbitrators who are likely to apply customary rules and practices. They can, of course, appeal to the regular civil courts, but they have no access to financial resources or legal aid to enforce their civil rights. Thus, by allowing spouses to reject the application of customary law, women with weak bargaining power may not be able to exercise their option and are the most likely to be disadvantaged. Admittedly, the provision is of value among the urban elite and has great potential as women's legal awareness rises.
Even though the 1995 constitution introduced principles of gender equality far beyond those in other countries, the prevailing legal framework is still unclear. As long as the civil code provisions are not amended, the traditionally defined gender division of labor and roles continue to be reiterated by law. Also, customary practices do not, as yet, have the status of law, but the government can decide to resurrect them by law. (12)
Economic Resources outside the Home
The vast majority (89 percent) of Ethiopian women live in rural areas and work in the informal agricultural sector, which is characterized by ease of entry, reliance on local resources, family ownership, small scale, labor intensity, and need of simple skills obtained outside the formal educational system. The participation of women is growing in this informal sector. As households are facing declining income, women's income has become crucial, and more and more women are turning to petty trading, domestic services, and according to a government report, prostitution. (13)
Ethiopia has ratified the International Labor Organization's 1958 Employment and Occupation Convention 111, which proposes equal access for both men and women to vocational guidance, placement services, training, employment, advancement, and security of tenure; equal remuneration for equal work; and conducive work conditions. At the national level, there are two main proclamations: the 1993 labor proclamation and the 1960 commercial code. However, neither of these proclamations applies to workers in the informal sector (Kedir 1992). The labor proclamation applies to persons employed in commercial or industrial activities. Its coverage excludes, inter alia, state employees and persons holding managerial posts. The commercial code applies to all traders. However, the definition of traders excludes (a) persons who carry on activities relating to agriculture, forestry, cattle breeding, or maintenance of pasture, when the trade is in the products of the land or livestock, (b) fishermen and persons who sell the products of their fishing or breeding, (c) handicraftsmen who live mainly by their own manual work and who carry on their work with the assistance of family members and not more than three employees. This exemption excludes most women who conduct petty trade. Therefore, these promulgations neither protect female labor nor significantly affect their role as agricultural producers or laborers.
There are few data about the nature of women's employment in the informal sector. Participatory Rural Appraisals (PRAs) indicates that, increasingly, women from poor households are moving into wage labor or other income-generating activities to supplement their household economies. In two regions, in all sites, there was a marked differential in wages received by men and women for similar work. As wage employment increases, this trend will need to be monitored closely, particularly given the constitutional guarantee of equal wages for equal work.
In the absence of information on the recent status of women traders and microentrepreneurs in Ethiopia, a rapid appraisal was conducted in Addis Ababa, albeit an urban area, to understand the legal constraints, if any, on poor women engaged in petty trading. A few legal issues emerged from this exercise, some of which are likely to apply in rural areas also.
Lack of access to credit is the first critical constraint (see box 2.7). Most women initiate their businesses with little capital, ranging from birr 10 to birr 100. Out of the 30 women interviewed, one obtained a credit of birr 300 from a nongovernmental organization (NGO)--CONCERN--at an interest rate of birr 5 per week. But, given the lack of technical support, she was unable to use the credit to enhance her business properly. Some women reported that they could have obtained credit from their kebele but were unable to do so because they did not satisfy the residency requirement. Many rely on small informal groupings like iqubs and idirs, but these types of groups are not known in many regions and in parts of other regions. Both men and women are then left to fend for themselves or to rely on personal relationships. Many acquire capital from family or through previous employment as maids and in other similar services. Urban migration and the influx of new populations due to the settlement programs have weakened many kinship structures. But even today, family and friends are the most common source of credit.
Of the persons interviewed, no one had ever received credit from a financial institution. To test the availability of financing from formal institutions, the team sent a divorced woman to the Commercial Bank of Ethiopia to request a credit of birr 1,000. She was first asked to produce a license for her trading activity. When she explained that she merely hawked vegetables, she was asked if she owned a house, which she could provide as collateral. In the absence of this, she was told that she would have to bring someone who could provide a personal guarantee for the credit. The Bureau of Trade, Industry, and Tourism in Addis Ababa provides credit up to birr 3,000, but only to groups of 10 unemployed persons with a fixed trading place, necessary equipment, initial capital, and requisite skills. However, these groups require a recommendation from the kebele administration where they reside, and this is often difficult to obtain. Thus collateral, in the form of land, house, personal guarantees, or residency requirements, remains a big constraint to accessing credit.
Box 2.7 Access to Credit The main forms of savings in the four sites consist of livestock products, petty trading, interest in iqubs, idirs, chicken, and other small ruminants. Savings are seasonal. Credit is common in all villages. There is no source of formal credit, and households turn to relatives, friends, or moneylenders. Credit in Sidama for women ranges between birr 20 and birr 50; for men, between birr 30 and birr 300. When credit is low (between birr 10 and birr 30), it is usually obtained interest-free; otherwise, the interest rate varies. Source: PRA in the southern region, 1997.
To rectify this situation and to provide more sources of credit to the rural poor, in 1996 the federal government passed a proclamation to license and supervise the business of microfinance institutions (proclamation 40/1996). This new proclamation covers microfinance institutions that grant credit in cash or in kind, with the bank fixing the size of the loan. The commercial code defines microfinance institutions as share companies and allows only institutions registered as companies, and with a license from the National Bank of Ethiopia, to conduct microfinance business. Section 20 also places special responsibility on microfinance institutions to devise and execute policies whereby the low-income sectors of society, especially in rural areas, can obtain credit by providing group guarantees instead of collateral in the form of property.
These legal provisions could affect women adversely. Currently, a number of NGOs implement microfinance schemes for poor women. Other than personal contacts, such schemes are the most common sources of microfinance for rural and urban women. These NGOs could now fall under the purview of the proclamation. If they have to register as companies, and subject themselves to the innumerable restrictions and requirements of the new proclamation, they will probably gradually wind down their operations. Such excessive regulation is likely to hamper flexible and innovative credit programs for women.
Lack of a place for trading and storage limit the diversification or expansion of the trading activity of women in the informal sector. Also, given their lack of legal status, women are subject to the whims and fancies of law enforcers and guards, who chase them away or sometimes arrest them and confiscate their properties. The administrative councils at the various levels--kebele, wereda, zonal, and regional--allocate trading places. However, a permanent trading place costs birr 2 to birr 3 a day, which is difficult for women whose maximum income, on better days, is only birr 3 to birr 4. A place of trading is a requirement for seeking a trading license or obtaining credit. Thus women identify two legal issues linked to the lack of access to a permanent trading place: first, the requirement that a trading place is needed to obtain a license or credit; and second, the vulnerability and lack of legal protection for women operating informally and with no access to a trading place.
Another constraint is their inability, primarily from lack of knowledge, to obtain a license or permit. The federal government recently promulgated a proclamation (67/1997) streamlining the registration process. Before, applicants were required to produce documents certified by the kebele authorities. The new regulation requires only that they submit application forms with the documents, eliminating the need for certification. Applicants are required to provide correct information and, if the information is proved otherwise, are subject to stiff penalty. The reduction in application procedures will benefit women who have greater difficulty meeting requirements, given their low educational status and lack of access to land. The impact on poor women will, however, be clear only when regional governments pass their own regulations.
Poor women have no access to social security schemes or other social protection measures. Many participate in informal iqubs or idirs, contributing on average birr 5 a week. These institutions are not registered, and group leaders are accountable only to the extent created by peer pressure. The lack of child care facilities is another constraint that affects women's ability to enter the labor market, even in rural areas (see box 2.8).
Thus, the legal environment does not support women wishing to initiate microenterprises. The procedures are still fairly complicated, which discourages women from applying for trading licenses or trading places. They still lack access to credit through formal institutions and do not have any safety net or security schemes that they can participate in, except for informal institutions like the idirs and iqubs. In the formal sector, women are underrepresented, and this issue needs to be addressed. The trend is toward wage-paying labor, which could raise a set of gender-related issues.
Access to Land and Natural Resources
Issues related to land and natural resources are of great importance to women, land being a critical productive resource if women are to improve their economic status. More and more women are cultivating and using land and natural resources, although in different ways than men, yet they are denied equitable rights to the use of land. Further, there is greater consensus on public policy in this area: the principles of equitable land reform have been stated in the constitution, a land policy has been articulated, and the draft land distribution bill of the federal government is pending publication. Also, resistance to gender-sensitive legal reform is not based on traditional or religious beliefs, but mainly on grounds of land fragmentation or fear that land will remain uncultivated. Gender issues in the use, control, and ownership of land are therefore discussed in detail here.
Box 2.8 Lack of Child Care Facilities While her husband was out in Negele town looking for daily labor, Fatuma went to Negele to work at a grinding mill. She left her one-year-old son in her hut, asking a neighbor to look in on him once in a while. The road was slippery and muddy, and she could not return the same day. Her neighbor, who was busy with her own household affairs, did not look in on the child until late in the evening. Unfortunately, it was too late; the child had died from a snakebite. Source: PRA in Oromiya, 1997.
The PRAs indicate that women use land in two ways. They work on land primarily cultivated by male family members, carrying out all work except that related to plowing with oxen. In some cases, they cultivate separate plots of land usually assigned by the husband. Female heads of households, if registered as heads with the peasant association, may acquire and cultivate land in their own right in some regions.
When women work the same land as men, they work equally hard but are rarely involved in marketing or allocating products. But, as stated in the civil code, men manage the assets and, therefore, allocate the products, and women depend on the husband's assignment of products for domestic consumption or marketing. Women's control extends only over the products allocated to them. The participatory rural assessment indicates that women benefit considerably more when they possess land in their own right. They have greater control over products and any income generated thereby. They are able to participate as full members of many agricultural or land-related associations or groups, thereby obtaining access to benefits provided by development projects and programs. Access to land also increases their social status. The participatory rural appraisal confirms and reiterates the close link between socioeconomic development of women and access to land: communities perceive that the change of status from one of tentative land user to one of user with more stable rights raises the income of female heads of household and enhances their social status.
Civil Code and the 1975 Constitution
If the provisions of the civil code are applied, all common property of a household is divided equally by the spouses, and all children have a right to inherit all property, including land. However, customarily, women are not accorded rights to land. Greater fragmentation of landholdings, inability of women to cultivate land, the tradition that a woman belongs to her husband's family, reluctance of a divorced wife to live among her former husband's clan, and the tradition that wives should have access to land in their villages have justified the exclusion of women from land at different times. Such exclusion has not been tested legally, because kebele-level committees allocate land, and their decision can only be overturned by another kebele-level committee.
In 1975, the Provisional Military Administrative Council abolished the concept of private ownership of land enshrined in the civil code and declared land to be the collective property of the Ethiopian people. The famous slogan "Meret Larashu," or "Land to the Tiller," was translated into law through proclamation 31/ 1975. All forms of land tenure were abolished, and the size of landholdings was restricted. Peasant associations were established in rural areas to redistribute land with assistance from the Ministry of Agriculture.
This proclamation provided for the allocation of sufficient land for any person and his family, irrespective of sex, who was willing to cultivate the land. Individual households had only usufruct rights over the land they tilled, and these rights could not be transferred by sale, lease, or mortgage. The land could be reallocated periodically by peasant associations in order to rectify any inequalities or to accommodate new claims (Bruce, Hoben, and Rahmato 1993). The proclamation provided for land to be given to the head of the household irrespective of gender (see box 2.9). Where a family included a male spouse, the land would, therefore, be given to the husband because he was, by law, the head of household. Similarly, female heads of household willing to till the land would be given adequate land to maintain their family.
This forced distribution of land seems to have given women some access to land in the long term, as illustrated in table 2.2, based on a survey ("Land Utilization") conducted on land used to grow crops (Central Statistical Authority 1996). The total number of landholders is estimated to be 8.7 million (a holder is a person who manages the operations of the agricultural holding and makes major decisions regarding the use of available resources). Of these, 82 percent are male, while 18 percent are female. Although advantageous to a few female-headed households, the 1975 proclamation reiterated the dependency of women by giving them access to land only as heads of household or through their husband and other male relatives.
Box 2.9 Women's Perception of Access to Land Women explained that "no woman has desired a portion of land as her own property, and no one has ever given her this. Every household can work on as much land as each can cultivate." Few people have oxen for plowing land, so there is enough for everyone. If a woman has enough strength, and preferably if she has oxen, she can cultivate the land, and she will be able to control the produce, even though she cannot own it. In practice, women say that neither do they have the time or the energy to clear land with hand tools nor do they have the oxen or labor resources. Source: PRA in Oromiya, 1997.
The 1995 constitution continues the state ownership of both rural and urban land (article 40[l-8]). Ownership of both rural and urban land is vested exclusively in the state and in the people of Ethiopia and is not subject to sale or other means of exchange. To rectify the injustice against women, the constitution provides equal rights to women for the use, transfer, administration, and control of land. Persons who wish to earn their living by farming have the right to use land freely. Moreover, Ethiopian pastoralists have the right to free land for grazing and cultivation. Every Ethiopian has full rights to the immovable property that he or she builds and to the permanent improvements brought on the land by his or her labor or capital. This right includes the right to alienate, to bequeath, and, where the right of land use expires, to remove such property, transfer title, or claim compensation for it. The implementation procedures are to be determined by law.
The federal government has the power to enact laws for the use and protection of land and other natural resources, whereas the responsibility for administering land rests with the regional states. The federal government issued a proclamation on rural land administration in July 1997 (pursuant to the constitution, which vests the power "to enact laws for utilization and protection of land and other natural resources, historical sites, and objects"). The law is brief and provides directions for the administration of rural land. Two of the 12 subarticles of article 6 are related to women. They require that regional land administration laws be free from gender discrimination, clearly reiterating the public policy of gender equality. They require that women be permitted to hire workers or to cultivate their holdings in the manner that they choose. They require that the system of allocating landholding rights be transparent and fair and that decisionmaking be participatory. Finally, they require that peasants, especially women, be involved in the allocation of land.
Amhara Land Proclamation
The Amhara land proclamation aims to achieve a single and final redistribution of land (proclamation 89/1997). It has a number of provisions that benefited women and will also be of educational value to other regions wishing to enact such proclamations. Thus, even though land allocation has already taken place in Amhara, it is discussed in detail here.
Under this law, the peasant associations would provide each new landowner with a legal certificate of landowner ship. The proclamation defines the right of possession to include the right to use, rent, sell, exchange, or bequeath property. Article 4 restricts possession to members of peasant associations. The criteria for distribution is not specified and is left to the determination of committees formed at the level of peasant associations.
The proclamation does not allocate land only to those prepared to till it. Therefore, it will no longer be possible to deny women land rights on the grounds that they will not till the land. However, a word of caution must be expressed, because agriculture and possession are still linked in some cases. Women (presumably those who are not administering families), small traders, and town dwellers are entitled to land only if their "livelihood depends on agriculture." Also, persons engaged in small-scale craft activities in rural localities are entitled to land only if they are not "separated from agricultural activities." These terms are not defined and were left to the interpretation of the kebele administrators. The impact of the application of provisions on women's access to land needs to be studied further.
Another interesting fact is that the proclamation does not use the term "household," at least in the English translation. Instead, it uses the term "social institution," which is defined as a unit that is operated under the responsibility of a man or a woman. The introduction of the concept of a family administrator (proclamation 89/ 1997, sec. 11), as opposed to a "head of household," could assist in overcoming any legal difficulties encountered: because, although the civil code makes the husband the head of the household, it leaves the position of family administrator negotiable between the spouses. If land is to be registered in the name of the head of household, the peasant association would legitimately need to register it in the name of the husband, irrespective of whether he lives in the household or not, unless and until the civil code is amended. However, given the new concept of a family administrator, land could be registered in the name of the woman who controls the land, although traditionally she may not be perceived as the head of household.
Given these positive revisions, more women should have access to land. Prima facie, this seems to be correct. According to the regional women's affairs bureau and the Amhara Council, a total of 554,889 family heads have received rights to land, of which 129,677, or about 23 percent, are women. Clearly, the more flexible eligibility provisions seem to have benefited women, but greater in-depth inquiry is needed to confirm this tentative conclusion. Despite this, the land proclamation raises some gender concerns at a theoretical level. (14) Three sets of concerns may be raised related to eligibility provisions, criteria for entitlement, and dispute settlement mechanisms.
Eligibility provisions. The Amhara proclamation (sec. 11) gives the following persons the right to hold land in the rural kebele in which they dwell:
* Heads of household who administer families
* Couples who married before 1996 and have been living together in their own house
* Pensioners who attained marriageable age earlier and have been married or, due to lack of money, could not marry and have been working as servants in the house of others in the rural locality in which they dwell
* Women who live in a rural locality and make money for a living in rural localities and whose means of subsistence is based on agriculture
* Small traders who live in a rural locality and whose livelihood is based on agriculture
* Town dwellers whose main source of livelihood is based on agriculture
* Pensioners who live in rural areas and whose livelihood formerly depended on their landholdings
* Publicly elected representatives whose basic means of existence depends on agriculture but who are serving in positions of responsibility in urban centers
* Persons who moved away from other rural peasant associations and have resided no less than five years in the peasant association where they now live, have decided to remain in the same place, and can provide documentation that they do not hold rural land in their name where they formally resided
* Persons who without being separated from agricultural activities have been engaged in small-scale activities in rural localities.
Customarily, single adult women have always had little access to land. Single women are expected to move to their husband's village once they are married. Peasant associations are, therefore, reluctant to allot land to them, because such land may remain uncultivated. The Amhara proclamation now permits land to be assigned to adults who have not established independent households but leaves the determination of eligibility to kebeles. Technically, this provision would constitute a basis for granting land to single women, but it is not clear whether single women have received land in Amhara.
Divorced women have also not had independent access to land. They are expected to return to their village after their divorce. If they continue to reside in their husband's village, they would have difficulty remarrying, because most males would be related to their husband. For the same reason, they would have difficulty obtaining assistance from male villagers to cultivate their land; neither would it be possible to get their own family members to help them with the cultivation. In order to avoid social conflict, peasant associations follow an unwritten rule of not assigning land to divorced women in their former husband's village. Under the new proclamation, divorced women, not being administrators of families, have access to land in the initial distribution only if they qualify under one of the eligibility provisions: they must be making money in the rural locality, engaging in small trade and living in a rural area, or engaging in small-scale craft activities; in addition, their livelihood must be based on agriculture. Also, technically if the marriage lasted for five years, they could also qualify by having moved away from their peasant association and lived in the current peasant association for more than five years. Once again, there is little information to indicate whether divorced women have been given access to land under these provisions.
Moreover, even if initial land is granted, women who are divorced or become adults after the land is distributed would still suffer until the customary rights pertaining to inheritance or divorce are changed. Issues related to single and divorced women need to be reviewed and monitored closely, because exclusion of single or divorced women could be challenged on constitutional grounds.
The land proclamation should also benefit Muslim women, because they now gain access to land at least during distribution, a right the PRA indicates they did not have under customary laws. This is because they can now be considered family administrators, even though they are not heads of household. Married women in polygynous households should benefit from the new proclamation.
One lacuna in the proclamation is the failure to specify how land should be registered. In the absence of clear directions, and since, both by customary law and under the civil code, the husband is deemed to be the head of household, in all cases where the spouses are together, land is registered in the name of the husband, and he is in full control of the land. However, the introduction of the family administrator in the Amhara proclamation could protect the female head of a household but reiterates the dependency of the married woman on her husband. Moreover, in the event of divorce or death of the husband, women are easily dispossessed of any rights to use the land. Women would be much better protected if the proclamation also required kebeles to ensure that land is registered in the name of both spouses, where both spouses live together in a household, and to enforce a rule that neither spouse alienates such land or deprives the other of it without the consent of the other.
Criteria for land allocation. The land proclamation is silent on the criteria for land distribution, which is in the hands of kebele elders. In the past, this has created problems. It has been alleged that land is allocated due to favoritism and inaccurate measurement (Amare 1995). Social status and economic resources are important in influencing the pattern of land distribution. Many peasants have claimed that kebele officials, their relatives, or those who have wined and dined them have received favorable treatment. According to the Amhara Women's Affairs Office (1997) in its document on gender problems and priorities, female-headed households have smaller pieces of land than male-headed households. Although 80 percent of the female heads of household have less than 2 hectares of land, and 5 percent have between 2 and 4 hectares, 57 percent of men have less than 2 hectares, and 31 percent have between 2 and 4 hectares. The differential in size can perhaps be attributed to the absence of the husband, an adult member, when considering the area for land distribution, and the tradition that husbands are allocated the largest share. The failure to provide guidelines for determining equitable criteria for land distribution could operate against the interests of women and other vulnerable segments of the population, particularly in regions where customary practices do not give such groups any rights to the land.
Dispute settlement. Disputes relating to land are settled by arbitration at the kebele level, and such decisions are final. Kebele elders, likely to be all male, naturally reflect the traditional bias against the possession of land by women. As stated earlier, the proclamation is not clear about the meaning of the phrase "without being separated from agricultural activities." If interpreted traditionally or narrowly, this could have an adverse impact on women, because in Ethiopia, agricultural activities are normally defined within the context of land practices that equate "personal cultivation" with oxen plowing, a male activity. The kebele committee may interpret such terms, not defined by law, consistent with traditional practices, thereby limiting women's access to land, and such a decision is final (see box 2.10). If the kebele arbitrators refuse to apply the civil code provisions, which confer greater property rights on women, and instead chose to apply more inequitable customary laws, women cannot appeal against such a decision.
Thus, even though the Amhara proclamation does not discriminate on the basis of gender, its gender-neutral provisions in a gender-biased customary context could have an inequitable impact. Two issues become important here. If regional governments are committed to gender equity in access to land, they should study the Amhara land proclamation, and if possible its impact, before drafting their own regional enactments. Also, peasant associations should receive gender-sensitive guidelines for formulating criteria for land allocation. Otherwise, the impact may, perhaps, remain only marginal.
Box 2.10 Women's Perceptions of Dispute Settlement Disputes in the family or community are settled by the kebele council in accordance with customary laws. There are no formal clan leaders. The kebele officials are elected by the whole village, including the women. In one community, a female kebele representative has been elected. However, the primary function of the council is to settle disputes, and because this is not a traditionally accepted role for women, most women themselves see the election of a woman as meaningless. Source: PRA in Gambella, 1997.
Also, having more rights to hold land will not be effective unless women have the additional support they need to use such land effectively, ensuring agricultural diversification and intensification. Without such support, women are likely to alienate their lands by giving them to fellow cultivators either through sharecropping arrangements or through sale. Given their weak bargaining positions, women rarely receive appropriate or adequate consideration for such transfers. Although not a legal issue, current policy on extension focuses mainly on male-dominated activities, ignoring the needs of women in agriculture. Even female development agents reportedly tackle similar agricultural issues but also target women in households in the area of home economics. Also, extension services are normally channeled through contact farmers. In Gambella, for example, the 39 contact farmers are all men. This lack of access to extension services is a severe constraint for women, and one that should be addressed, simultaneously, if land reform is to benefit women.
Use of Urban Land and Land for Investment in Oromiya
Oromiya has not issued a proclamation on land distribution but has enacted two laws, one relating to urban land and the other relating to acquisition of rural land for investment activities (regulations 1/1995 and 3/1995). The law on urban land provides all Oromiya residents with 200 square meters of urban land to construct a dwelling. The law on rural land for investment permits the state to lease land to investors upon approval by the Oromiya Regional Investment Board, which was created by the investment management proclamation (2/1995). The investment board may obtain its information on the availability of unoccupied land from zonal and wereda-level investment committees. Further, the regulation permits land to be granted free for projects deemed of special importance on the basis of the investor's contribution to the area's environmental protection or promotion of public services. Since Oromiya has not passed a land distribution law, it is too early to anticipate whether this promulgation will have any gender-disaggregated impact. However, the allocation of land for investment will reduce the total amount of land available for distribution and may force women to cultivate marginal land. Therefore, the criteria for land distribution and the allocation of land for investment are critical. The regulations will have to provide transparent procedures for allocation that do not adversely affect women.
In the area of land, the issues are clear. Provisions related to eligibility for land, criteria for land distribution, and procedural issues like dispute settlement will have to be reviewed closely to ensure that they are consistent with the constitutional promises and that regional proclamations do not have a discriminatory impact on women's access to land. Simultaneously, although not a legal issue, extension services must also reach women farmers if the legal changes are to be effective.
Natural Resources and Informal Social Security
Poor women rely to a greater extent than men on common-property resources for their household subsistence needs (Blomback and Hadera 1995). These include the use of biomass for cooking, the sale of any surplus, raw food, or fodder for livestock, medicinal plants for health ailments, and raw materials for a variety of small household tools and articles. Such products provide an economic buffer for women, particularly in the lean season, as well as contribute to the household subsistence economy. Degradation of land, population pressure, deforestation, and conversion of land to farmland are some of the factors that have reduced the effectiveness of such informal security provisions and have had an adverse impact on the economic status of poor households, in particular on women's economic activities.
In 1994 the transitional government established three types of forest ownership: state, regional, and private (proclamation 94/1994). All protected forests are state forests, directly controlled by the federal government. Regional forests are under the control of regional governments, and separate bureaus have been established to develop polices related to these natural resources and the environment.
The proclamation restricts the use of state and regional forests, except in accordance with the management plan approved by the ministry or the appropriate regional body. To use the products of a protected, regional, or state forest, a person needs to obtain a written permit from the ministry or the appropriate regional body. The proclamation permits the government to impose appropriate fees for the use of forest products in an amount necessary to satisfy domestic needs. Where a person operates without such a permit, he or she may be punished with imprisonment not exceeding two years or be fined not more than birr 5,000. Any forest product harvested without such a permit may be seized. This rule applies even to native inhabitants of land declared by the government to be regional forest. In the case of protected forests, an appropriate body must issue permits even if beehives are to be stationed on the land.
Currently, the poor are completely prohibited from accessing forestland. Permits have to be sought to collect a bundle of firewood or even a wild fruit from the forest. It is ironic, but true, that larger industries can obtain the necessary permits to use forest products, while poor women cannot. In most cases, however, regional governments are still drafting proclamations within the broad policy framework established by the federal government. Such regulations are critical, because they will determine the rights of poor communities as opposed to those of larger trading entities. Although there is no doubt that strict conservation measures need to be taken, given the state of Ethiopia's environment, regional governments will need to draft forest regulations, balancing the needs of the environment with those of the poor who exploit it to survive.
Laws Governing Organization
Women need to have the ability to participate in development activities, and facilitating processes are needed to enhance women's participation in development interventions. A legislative framework is needed to enable poor women to access information and participate in the design and implementation of development projects. Once again, this is a regional issue, because the federal government has already established the broad national framework.
Development experience indicates that groups are effective instruments for seeking women's views and ensuring women's participation in development interventions. Group formation also assists in fostering a sense of solidarity on common issues and provides an atmosphere in which members of the group can deal with unfamiliar institutions and processes. There are two organizations for popular participation: those that are representative in character, like peasant associations and NGOs, and those that facilitate the direct participation of women, like the more formal agricultural cooperatives or the relatively informal self-help groups like idirs and iqubs. As the participatory rural assessment and other studies have indicated, women are much more active in the latter than in the former.
Kebeles in urban areas and peasant associations in rural areas are small village-level bodies that help to deliver services to rural households. Peasant associations provide a link between the state and the peasants and are responsible for enforcing the directives from government ministries. (15)
Peasant associations are sometimes the only association in a remote area, and government departments like the Ministry of Agriculture deliver services through them. During the last regime, women's representation was achieved through women's associations that were established as wings of the peasant associations. But these were viewed negatively because these associations levied large fees for which members did not receive adequate benefits. Therefore, women's associations have fallen into disrepute. Currently, only women heads of households are members of peasant associations, and other women do not participate either in meetings or in discussions. However, each association has a development committee headed by the association's chairperson. This committee guides all activities funded by external resources and normally includes persons from different walks of life in the village. Traditional birth attendants and community health workers (many of whom are women) normally participate in such committees.
Since these associations are essentially state-controlled associations that perform specific state functions, they are perceived as being under government control and, in some cases, prone to nepotism and corruption. This considerably weakens their ability to function in a representative manner. Today, regions are enacting region-specific promulgations for administrative levels below the wereda. Thus, in Oromiya, for example, article 85-95 of the regional constitution governs establishment of kebeles and peasant associations. If such proclamations can introduce greater transparency and accountability, these village-based associations hold tremendous potential for catalyzing development activities. Also, it is not clear yet whether kebeles need to register to acquire legal status, and this becomes an issue when using them to channel funds in development interventions.
Article 31 of the constitution provides the right to form associations for any cause or purpose as long as the activities of the association do not violate the rule of law. The civil code defines an association as "a grouping formed between two or more persons with a view to obtaining a result other than the securing or sharing of profits." These associations or groups that are nonprofit in nature could fall within the definition of an "association" in the civil code.
The legal regime governing NGOs is unclear, which constrains their ability to participate effectively in the development process. In fact, there is no consistent rule on registration. Un der the civil code, such associations should be registered with the regional Office of Associations. If implemented, this requirement would place constraints on grassroots women's groups. The Office of Associations only exists at the central and regional levels. It is therefore virtually impossible for grassroots men and women to gain access to it. Moreover, the current process of registration is tedious, and "obtaining any decisions from the Office of Associations is difficult and highly bureaucratic" (Molla 1997). However, new NGOs are sometimes required to obtain clearances from entities at the central, regional, wereda, and kebele levels. Also, because the precise requirements are not clear, NGOs are repeatedly asked to return with different types of information. Although none of these may be deliberate attempts to discourage NGOs and may merely be the acts of bureaucrats protecting themselves in an unsure legal regime, the existing framework is neither transparent nor conducive to the effective functioning of NGOs.
The 1994 proclamation on agricultural cooperative societies aims to enhance the role of societies (Berhanu 1995). This proclamation permits the formation of a primary society or organization by a minimum of 10 members who are living in a territorial unit in rural areas. The members may jointly determine the type of activities in which they will engage. The specific objectives of a society are:
* To improve the living condition of members by increasing production and productivity
* To promote self-reliance among members
* To solve problems collectively that a peasant cannot solve alone
* To enable members to obtain easily and at a fair price modern technologies and products capable of increasing agricultural production and materials necessary for their livelihood
* To satisfy the needs of a community and increase the income of a peasant by processing agricultural production and obtaining materials necessary for their livelihood easily and at a fair price
* To promote the culture of members by teaching and training.
Although the proclamation prohibits discrimination on grounds of gender, a person may be eligible for membership only if he or she is regularly involved in agricultural activities. In the south, the ongoing restructuring attempts to turn cooperatives into commercially viable units and, therefore, charges an initial membership fee of birr 25. As a result, usually only one person in a poor household--usually the male head--joins the cooperative, although the prohibition on voting through representatives means that if women heads of household are members, they would have to attend meetings in order to exercise their votes.
This proclamation also allows for the creation of smaller cooperatives below the level of peasant association--a provision that could help women to form small, legally recognized groups. However, this potential can be tapped only through issuance of new regulations.
Ethiopians have a long tradition of forming groups for mutual support. The most common groups are idirs (funeral associations), iqubs (rotating savings and credit associations), debo (labor-sharing arrangements), and maheber, senbete, and tertim (religious associations) (Molla 1997). Women's indigenous groups are common, albeit to varying degrees in different regions; usually they are small and very informal.
An idir is a group created by neighborhood members to discharge some social obligations jointly at time of crisis or event of celebration. Such associations have written by-laws, and leaders are elected by members, who are obliged to contribute money or service. Idirs need not be registered, as they do not need any legal personality to function. However, if they undertake activities that could create legal consequences to third parties, registration may be mandatory. Many idirs, however, continue to register in an effort to decrease the chance of mismanagement. The Office of Associations, which is now disbanded, used to register idirs, and registration is now handled by the Ministry of Justice.
Iqubs are traditional savings institutions. Each member of an iqub makes a periodic payment (the amount contributed is determined by the members). The money collected each period is paid to a member, the order of payment being determined by lottery; the rotation continues until everyone receives the amount he or she contributed. The institutional status of iqubs is difficult to define under the law, because they are rarely registered. There have been several court cases because members who collect contributions sometimes disappear without discharging their obligations. In most cases, the court defines such groups as having contractual relations and thus employs the law of contracts.
Because idirs and iqubs are not required to register, they do not constitute separate legal entities by law. They are unable to enter into contracts as a group, and liability remains with the individuals who sign the contracts on behalf of the group. There is no requirement to maintain accounts or proper records. These features are determined by the group itself. Although this flexibility is an attractive feature, there is a need to ensure a minimum level of formality, if these self-help groups are to deliver development services. The lack of legal status currently detracts from the tremendous potential role that these self-help groups have to play in development activities for the poor, and in particular for women, who often participate in such groups more than in formal ones.
In conclusion, the law does not facilitate the participation of women in the design and implementation of development activities. In some projects like the Ethiopian Social and Rehabilitation Development Fund, this legal limitation has been overcome by requiring participating groups to meet publicly, to draft minutes of meetings, and so forth. Although this does not give the group a legal identity, it is acceptable when the group comes together for the temporary purpose of supervising and managing a subproject. But, when the activity requires long-term management of funds or generates income, greater accountability is essential, and a facilitating legal framework is important. The broad legal framework has been established with promulgation of the agricultural cooperatives societies proclamation. However, the regions are yet to pass enabling legislation. This is important. Also, it would be useful to see whether idirs and iqubs could obtain separate legal personalities if they comply with minimal registration procedures. Another important issue relates to peasant associations. These exist at the village level but are unable to play a full role in village-level development activities because they are not representative. Last but not least, the legal regime for operating NGOs must be clarified. It is understood that this is already under consideration.
Access to Remedies for Settling Disputes
Appropriate and accessible remedies are critical, if women are to enjoy their rights. Delays and obstacles in enforcement can negate women's rights. In Ethiopia, there is a dual system of dispute settlement. For all disputes concerning betrothal and marriage, the civil code vests powers in family arbitrators. For all other matters, the conventional or formal judicial system has jurisdiction.
The judicial structures are similar in most regions. Each region has supreme, high, and wereda courts established by proclamation. Besides their judicial function on matters of regional competence, regional courts exercise powers on behalf of federal courts. This will change when the House of People's Representatives establishes parallel federal courts in the regions according to the constitution. The jurisdiction of these civil courts extends to all matters, including appeals from decisions of family arbitrators. Women rarely approach the civil court system. Steeped in illiteracy, and without any legal aid, rural women have little or no access to this formal dispute-settlement process (see box 2.11).
The practice of family arbitration was inspired "by the idea that judges who are appointed by the state are not perhaps the best placed and the best qualified to resolve disputes of a family nature." Also, it is a well-established and respectable form of dispute settlement, based on the age-old Ethiopian custom of shimagale (Aklilu 1973: 176).
Box 2.11 Access to Remedies under Gada Principles Men say that gada principles strictly control men's behavior towards women. For example, a man who practices violence against his wife could be flogged, or a rapist could be required to sit naked on an open ant hill. However, women stated that they had never seen such punishments, at least, in their lifetimes. Source: PRA in Oromiya, 1997.
The system of family arbitrators is meritorious in that it provides women with greater access to legal remedies than if their only recourse were to the formal judicial system. It also avoids the need to drag personal matters before an impersonal arbiter. However, a number of issues limit the effectiveness of family arbitrators. These include their lack of legal training, their scarcity in urban areas, their lack of power to enforce a decision, and their deliberate postponement of a decision to obtain increased remuneration (see box 2.12). Insofar as they affect men and women differently, these issues are discussed below. This analysis is also strengthened by a rapid appraisal, conducted in Addis Ababa, that clearly manifests the discontent of women with family arbitrators.
Traditionally, family arbitrators or shimagales (wise old men) were almost always men. An Ethiopian study cites a sample of 508 shimagales in which three were women (Beckstorm 1969). In all seven case studies conducted in Addis Ababa, arbitrators were men, and wives felt that their former husbands were able to develop a better rapport with the arbitrator, who supported a decision that benefited the husbands.
Box 2.12 Dispute Settlement Nuria, age 22, married her husband according to local custom. She made a home for them by making a shelter with straw and covering the entrance with her shawl. They worked very hard and soon built a grass-roofed hut for themselves. They then started a tea shop in an extension to the hut. When this business flourished and they had saved enough money, her husband started to express dissatisfaction with her because she could not have children. One day, he asked a girl who worked at their tea shop to move in with them. The neighbors advised Nuria to send the girl away because her husband was having an affair with her. When Nuria did this, her husband beat her so badly that she had to stay in bed for days. And the girl came back to live with them. He told Nuria that he had taken on a second wife because Nuria had not given him any children. He then took all the savings, built a tin-roofed house next to the old one, and moved there with his new wife. He refused to give Nuria any money. Nuria approached the kadi (Muslim religious leader) from her village who had blessed their marriage. The kadi reminded the husband of his responsibilities, but he would not listen. The /cad/then told Nuria that there was nothing more he could do and advised her to approach the courts. Nuria moved out of her house and found a room to rent. She bought local liquor from wholesale dealers and retailed it to support herself. She could not appeal to the court unless she paid a fee of birr 25, which she did not have. Now, she is a member of an ikub, and when she gets her share, she plans to return to her family where she will be considered a failure and an embarrassment. Source: PRA in Oromiya, 1997
One of the perceived strengths of family arbitration is that the disputants select arbitrators who are personally known well-wishers and presumably have the interests of the couple above all else. These arbitrators are expected to have a vested interest in preserving an image of impartiality and fairness within the community where they live. It is therefore likely that decisions will keep the joint interests of both parties in mind. However, as early as 1968, this no longer held true in urban areas, where arbitrators without any personal connections to the parties were holding parties for ransom (Beckstrom 1969).
The participatory rural assessment conducted in Addis Ababa revealed that none of the arbitrators was a marriage witness or family friend. They knew neither the couple nor the case. According to a study conducted by the Ethiopian Women Lawyers Association (1996), most family arbitrators assigned to disputes were people living near the court.
The trend toward having strangers act as family arbitrators has introduced the practice of remuneration. Beckstorm comments that the "tradition and a sense of pride [had] militated against [remuneration] being given and received" and cites a survey conducted in three towns in which only four out of the 105 divorce cases involved remuneration (Beckstrom 1969, page 291). However, this is not true any more. "Practice has shown that arbitrators demand extremely unfair remuneration, make immoral demands on the wife, take years to reach a decision, refuse to accept the revocation of their appointment, and do not seem to succeed at reconciliation" (Ethiopian Women Lawyers Association 1996). A case is cited in which the arbitrator's fees was 30 times the equivalent court fees. Also, three out of the four cases resulted in the husband making the payment and gaining greater advantage at the end of the process. The participatory assessment conducted in Addis Ababa further validates this fact, revealing that professional family arbitrators often do not function unless they are remunerated. It is common practice to pay at every or at every other meeting. The fees depend on the status of the couple, ranging from birr 200 to birr 16,000.
Moreover, the absence of family well-wishers acting as arbitrators could reduce the chances of reconciliation between spouses. Only 3.4 percent of all cases examined by the Ethiopian Women Lawyers Association led to reconciliation between the spouses. Although in the absence of a systematic study, it is difficult to assert that reconciliation was made less probable by the involvement of strangers as arbitrators, such a link is possible.
Also, family arbitrators are not required to have legal training. This sometimes works against women. This is particularly true given the wide divergence between customary rules and the provisions of the civil code. For example, despite the provision in the civil code requiring equitable sharing of property between spouses, women rarely receive their full entitlement. A review indicates that in none of the cases brought to the court over the past eight years did women receive 50 percent of the common property. The rapid survey also indicated that this seems to be the case when the family arbitrators are appointed outside the court. In the case of Bezunesh Hussen, the family arbitrators awarded her birr 1,000 of her nikah, plus an additional birr 500, although the household owned three shops and other properties. Although it is true that the decision of a family arbitrator in ignorance of the law could be "illegal" and subject to court review, it is almost impossible for women to apply for such a declaration of irregularity given the process of judicial review.
Procedural irregularities are also seen in the case of family arbitration. The civil code requires arbitrators to pronounce divorce within one month in serious cases of divorce and one year in other cases, which may be extended for up to five years. In all cases, the civil code requires that supplementary judgment be provided within six months of the date of judgment of divorce. Because payment is connected to duration of the case, the family arbitrator has an economic incentive to prolong the case. Among the seven case studies prepared by the participatory rural assessment in Addis Ababa, the time for settlement averaged around two years, with one case pending for the last 10 years.
Spousal maintenance is not recognized under Ethiopian law, because women are entitled under the civil code to half of the household's common property upon termination of marriage. However, arbitrators may allow some form of interim maintenance (or right to access the common property) during divorce proceedings. There are no rules for determining interim maintenance, and, therefore, women who are often in great need and may be thrown out of their homes receive little support during the pendancy of divorce proceedings. If awarded, interim maintenance is usually very low and does not involve allowances for needs such as education, medicine, or clothing. Women without children, for example, may receive a food allowance if they agree to return it once the property has been settled. Given the absence of guidelines, the food allowance in Addis Ababa varies significantly, ranging from birr 46 for a woman and her daughter to birr 700 for another woman with two children (Hailu and Mekonnen 1997). Another study revealed that only four out of 105 women received an interim food ration (see Beckstorm 1969). An additional constraint identified by women is that the food allowance is provided only up to the time of divorce and not until the property is shared. Moreover, because the law confers management of property on husbands, the husband may continue to use the common-property resources for food allowances as he wishes.
To conclude, the family arbitration system provides a dispute-settlement system that is relatively more accessible to poor women in Ethiopia than in countries where the only recourse is the formal judicial system, and it is certainly a culturally acceptable mode of dispute settlement. However, the system as it has evolved is not without problems and does not provide quick or proper justice to poor women. The system needs to be revised so that it does not compromise its advantages and is more gendersensitive (some regions are reportedly reviewing the possibility of establishing family courts to tackle the issue).
(1.) Ethiopia has ratified the Convention on the Political Rights of Women; Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery; Convention Concerning Discrimination in Employment and Occupation; Convention on the Elimination of All Forms of Discrimination against Women; and Convention for the Suppression of the Traffic in Persons and of the Exploitation of Others. Ethiopia has not signed the Convention on the Nationality of Married Women; Convention on Consent to Marriage, Minimum Age for Marriage, and Registration of Marriages; Convention against Discrimination in Education; and Convention Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value.
(2.) Property owned by spouses, whether acquired before marriage or through succession, donation, or exchange of personal property, remains personal property. Property donated or bequeathed to spouses jointly, together with their incomes and salaries, constitute common property. Property acquired during marriage is common property, unless family arbitrators declare it to be personal property.
(3.) Richard Pankhurst traces the origins of the husband being the head of the household to the injunction of St. Paul in Ephesians 5: 22-24: "Wives, submit yourselves unto your husbands, as unto the Lord. For the husband is the head of the wife, even as Christ is the head of the Church" (Pankhurst 1992: 69)
(4.) "Putting the wife in a socially lower position and at the same time giving her equal rights [with the man] to their property with the proviso that one of them could administer the property of both smacks of bad faith" (Mesfin 1972: 32, cited in Taddesse 1996).
(5.) A contract of marriage is valid if it is witnessed by four persons: two for the husband and two for the wife. In rural areas being head of a household means that the husband has the power to determine the first allocation of household resources. Thus, for example, the husband allocates any agricultural produce from household land. Once allocated, the wife controls the portion allocated to her for household consumption.
(6.) Admittedly, the civil code imposes a number of restrictions on the controlling spouse to manage the property judiciously. It prohibits either spouse from alienating any part of the common property without consent of the other or in a reckless fashion during pendency of the marriage. In case of reckless management, the other spouse can ask the court for responsibility to manage the property or to ask the employer to redirect the salary.
(7.) In dividing property, family arbitrators may consider all "circumstances of the case," particularly "the importance and the gravity of the faults by reason of which the divorce has been ordered" and the morally reprehensible nature of the petition for divorce. Where the divorce is not for a serious reason, the family arbitrator may apply the above penalties to the divorce petitioner.
(8.) In 1975, out of a total of 3.5 million married men, 3.2 million were monogamous, 320,000 had two wives, 28,200 had three wives, and only 4,000 and 1,000 had four and five wives, respectively (Central Statistical Authority 1975, cited in Haile).
(9.) The Council of Constitutional Inquiry consists of 11 members, including six legal experts appointed by the president of the republic upon recommendation by the House of People's representative. It is understood that this council is still being constituted, after which, the process for invalidation will need to be established. The House of Federation (Upper House) designates three of its members to sit on the council.
(10.) The House of Federation is the upper house of the federal parliament representing nation and nationalities. Its major function is to check the balance between federal and regional powers and also regional harmony in accordance with the constitution.
(11.) The legal basis for the applicability of discriminatory customary laws is not clear, particularly since no exemption is provided in the constitution. It probably will ultimately need to be determined by the House of Federation.
(12.) It is understood that the government is reviewing the situation and that legislative amendments may be expected in the near future. This will assist in operationalizing the promise of equality in the constitution and in clarifying areas of uncertainty.
(13.) The largest employer of women is the public sector. A 1981 survey by the Ministry of Labor and Social Survey indicated that out of a total of 256,657 permanent employees, only 50,820 were women. Out of a total of 57,185 temporary and contract workers, only 7,806 were women. In the private sector, the situation is no better. Out of a total of 16,829, only 4,631 were women. However, this report limits itself to the informal sector where the majority of women work.
(14.) Given the tensions created by implementation of the land proclamation, the regional steering committee in Amhara requested that land distribution issues not be discussed during the participatory rural assessment. This was respected.
(15.) These associations may initiate economic and social development activities of their own. The peasant association also has a social court or a judicial organ that functions as an independent organ of the kebele. These social courts are authorized to hear disputes involving land, theft, deforestation, and other personal issues. They also have a defense team that can enforce judicial decisions and protect the security of the locality. In addition, a development committee is responsible for mobilizing peasant labor for rural development works (planting seeds, clearing feeder roads, and so forth). The peasant association council may issue social regulations and ensure their implementation, if these regulations are not in conflict with directives issued by higher councils. The peasant association consists of village households and acts as the general assembly that elects an executive committee. However, peasant association leaders are often hand-picked rather than elected.
Table 2.1 Customary Practices in Five Regions of Ethiopia Rights Amhara Afar Upon There is no clear rule. Daughter may take two marriage Among the Christian cows, 10 goats or sheep, communities, bride price and occasionally a male is not the norm, and both camel. If not enough, she families provide gifts to can take additional live- the couple upon marriage. stock (not camels). She Among the Muslims, gifts receives cooking utensils are provided by the and furniture. Sometimes, bridegroom's family, she takes the house and mainly clothes and constructs it in her jewelry. In both cases, husband's village. The children in better-off husband also gives her a homes are married earlier. nikah and some livestock, In North Wollo, land is which is produce she provided by the bride's controls. parents as dowry. In Wolleh, both families provide gifts. In Worreb, wedding gifts (macha) should be exchanged equally. The bridegroom's parents provide cash for the engagement (ejmensha), if it is a marriage accepted by the parents. Within the Christian women own half The woman controls household the common property, but utensils, furniture, all married women control only items related to milk and crops (except in one food, ornaments such as community), livestock neck and wrist ties, and products, chicken, eggs, the house, since she and some garden trees. collects materials, Muslim women have greater constructs, and dismantles ownership rights, albeit homes. over limited household property. Upon Among Muslims, normally, When divorce is by divorce women may take their agreement, she takes clothes and wedding gifts. property that belongs to They receive the nikah. In her. When divorce is at Christian communities, the woman's request, she property is shared takes what she brought, equally. Women were not has no right to the nikah, entitled to land in all sometimes pays the husband four communities. a "moral" payment that is determined by the elders. Upon Among Christians, women The widow marries another widow- rarely inherit the cousin. Her family will hood property of their need to return the nikah, husbands, when there are if she chooses to return other blood relatives. to her clan. Inheritance Women inherit land only if Under Abukratie law, there are no brothers or women have no inheritance parents. Among Christians, rights. Under sharia law, children inherit property one-eighth of the property equally, and parents may is divided among spouses; reserve property for any one-sixth is given to the child. Among Muslims, man's parents, and the women enjoy half the remainder is divided among property that men do. the children, with the Wives inherit only male offspring getting one-eighth of livestock twice that of the female. and products. Wives are inherited by the brother-in-law. Rights Gambella Oromiya Upon Polygyny is common. Bride price, mostly in the marriage Wives mostly live around form of livestock and the same place, and all clothing, is practiced in children eat together. It some communities. In Fogie is customary for the groom Kombolcha, along with the to pay a bride price to bride price, the the parents of the bride. bridegroom has to give Among the Agnuaks, this clothes to the bride and usually involves cash, her parents. In Gabra forcing many young men to Borena, the girl receives take up wage employment. birr 200 for cloth. In Among the Nuers, it is Arsi, both families usually live-stock. provide gifts: the bride's parents provide the bride with some cattle, and the bridegroom's family provides her with five cows (including one milking and one pregnant) as nikah. Within the Legal ownership of The woman controls any household property by women is rare. animal or livestock she A woman shares the produce brings upon marriage and of the land that she helps utensils, part of the to till; she has some land's product that her control over chicken, husband allocates to her, eggs, fruits, vegetables, and any produce from any and sometimes over sheep land that she happens to and goats. cultivate. Upon Upon divorce, the bride's The woman receives part of divorce parents must return all of the grain in the granary, bride price received. part of the cash if the husband has any, and sometimes cattle. Upon She is inherited by the If she has children, her widow- husband's brother. If the brother-in-law inherits hood widow refuses, her parents his brother's property, return the bride price, wife, and children. If she and the widow and children has a grown son, she can return to her parent's keep the land for her son. home. If nobody inherits If she has no children, the widow, her parents she is expected to return need not return the bride to her village. price; she is looked after by her husband's relatives. The widow controls livestock products but cannot sell livestock without permission of the male head. Inheritance Among Agnuaks, women A daughter cannot inherit inherit property including her parents' property the right to use land, because her wealth is at only if there are no sons, her husband's home. She if she is too old to cannot inherit her remarry, or if her son is husband's property because not old enough to take it belongs to the clan. control. She retains property inherited from her husband. Rights South Upon Polygyny is practiced by marriage richer men in some zones. Bride price is paid by the bridegroom's family to the bride's parents and is negotiated by elders. In South Omo, it may include birr 2,000, four goats, bullets, a gun, two pots of honey, clothes, and jewelry. In Konso, it may include birr 200 to birr 700 and clothes. In North Omo, polygyny is common, and usually birr 20 are given to the bride's relatives. In Sidama, Korate, birr 200 to birr 300 are given, along with jewelry and clothes. Within the Property rights are household insignificant. All land is held by men. Even female heads of household own land nominally. In South Omo, Arkisha village, women do not own any property. In Korate Sidama, women own trinkets such as combs, enset scraper, and their clothes. In Zale, North Omo, women own some livestock. In Gahi Konso, "women belong to men, and their properties consist of their children and clothes." Upon Women seem to have little divorce or no rights to property upon divorce. Of 41 female heads of household in the sites, 32 were landless. Upon The customary approach is widow- for the widow and her hood small children, if any, to be inherited by a male member of the deceased spouse's clan. Where she has no children, elderly relatives determine who should inherit her. Inheritance Women have no inheritance rights. In rare cases, women inherit land but hold it nominally for their sons. In North Omo, women own livestock acknowledged by the deceased husband to have belonged to her. Source: Participatory rural appraisal, 1997. Table 2.2 Patterns of Landholding in Ethiopia, by Region and Gender, 1995 Male Female Total number Region of holders Number Percent Number Percent Amhara 2,583,810 2,139,600 83 444,200 17 Afar 28,260 26,050 92 2,210 8 Oromiya 3,312,930 2,751,100 83 561,830 17 Gambella 23,870 18,700 78 5,170 22 Southern 1,960,410 1,615,800 82 344,610 18 Source: Central Statistical Authority, 1996.
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|Title Annotation:||Implementing the Ethiopian National Policy for Women: Institutional and Regulatory Issues|
|Publication:||Implementing the Ethiopian National Policy for Women|
|Date:||Apr 1, 1998|
|Previous Article:||1 Introduction and background.|
|Next Article:||3 Institutional constraints on implementation of the women s policy.|