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Women and Poverty-A Human Rights


Sandra Fredman FBA, QC (hon), Rhodes Professor of Law, Oxford University

Working Paper No. 2

January 2015

Table of Contents

1. Introduction

2. Gendered Poverty: A Human Rights Issue

2.1 Poverty Constituted by Law

2.2 Structural Inequality

3. Engendering Human Rights

4. Substantive Equality and Engendering Human Rights

5. Evaluating Development Policies: A Human Rights Approach

5.1 Conditional Cash Transfer Programmes

5.2 Let a woman fish for a day: Micro-credit and substantive equality

6. Conclusion

The views expressed in this paper are those of its independent author.

Page 2

1. Introduction Despite the global commitment to gender equality in the Millennium Development Goals, women still form the majority of the world’s poorest people. This suggests that it is not sufficient to approach the problem of gendered poverty merely as one of development. Instead, attention is increasingly turning to the role of human rights law in addressing this issue. Yet, what can human rights contribute to the complex problem of women in poverty? Equality is universally recognised as a human right.

However poverty has not traditionally been regarded as a human rights issue; but instead as a misfortune, analogous to illness, or even as the fault of those living in poverty, whether due to their idleness, misjudgement or lack of talent. Nevertheless, it is argued in this paper that the principle of human rights has much to offer in approaching the question of gendered poverty. At the very least, it signifies that addressing women in poverty is not simply an act of magnanimity on the part of the world’s nations. Addressing the specific issue of gendered poverty should be central to States’ human rights commitments made both internationally and domestically.

And in a world in which power and influence are increasingly wielded by large corporations, such commitments should extend to all who exercise power.

However, it is not sufficient simply to apply existing conceptions of human rights.

Instead, it is argued here, human rights need to be “engendered.”1 This in turn requires an approach to human rights which incorporates the insights of substantive equality. It is not a coincidence that women predominate amongst the poorest in the world: poverty is in many respects a consequence of discrimination against women

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contributes to women’s poverty and inequality, through express legal limitations and endorsements of cultural or customary discrimination. However, removing such laws to create formal equality before the law is only the first step. In addition, human rights need to be fashioned to take account of the interlocking factors which operate synergistically to cause and maintain gendered poverty. Even in countries where formal equality before the law has been achieved, women continue to be segregated into low paying jobs and to predominate in precarious employment and the informal sector. To address these issues, it is necessary to recognise the extent to which women’s access to economic resources, including waged work, property, and capital for entrepreneurial activities, is a result of structural gender inequalities. Simply giving poor women basic human rights does not necessarily mean that they can enjoy and exercise them; and opening up opportunities in principle does not mean that they are feasible for poor women. In addition, it is necessary to deal with the constraints imposed by a range of other factors, including the power structures within the family;

the interaction between the family and the labour market, particularly women’s primary responsibility for child-care and housework; violence against women;

reproductive rights and age of marriage; and many others.

The aim of this paper is to provide a framework within which human rights and development policies can work together to address the specific ways in which women experience gendered poverty. A human rights approach begins by insisting that women are rights-bearers, not merely beneficiaries. This, in turn, carries with it correlative duties on States and other powerful actors. At the same time, engendered human rights require an understanding of both human rights and their correlative duties which incorporates the insights of substantive equality. Rather than the

–  –  –

liberty, they should be seen as harnessing State power to facilitate genuine exercise of choice and agency. Engendered human rights aim to take account of the power relations in which rights are exercised. Drawing on the ‘capabilities’ approach of Amartya Sen and Martha Nussbaum, they aim to enhance the set of feasible options open to women.2 At the same time, they are not merely about personal choice. Many aspects of women’s lives are based on responsibility, care and interdependence.

Thus, engendered human rights should also support the values of interdependence, solidarity and care, whether or not based on choice.3 Moreover, engendered human rights are not only about women. They address the gendered relationships in society.

For example, measures facilitating women’s equal participation in the paid workforce should be matched by measures facilitating men’s equal participation in the unpaid work in the home.4 The first section of this paper briefly outlines the specific ways in which gender discrimination causes and perpetuates poverty. The second section develops the principles of engendered human rights and creates a framework to assess development policies from the perspective of human rights and substantive equality.

The third section applies this analysis to evaluate two popular current policies for dealing with women in poverty: conditional cash transfer programmes (CCTPs) and micro-financing or micro-credit.

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has been frequently underlined. But it is not simply the fact that women are living in poverty that matters. What is of real importance is the gendered nature of that poverty. There are many ways in which gender inequality specifically shapes women’s experience of poverty. As a start, in many countries, the continued existence of discriminatory laws actively creates and maintains poverty for women, limiting or obstructing their access to economic resources. In addition, women are not afforded equal protection under the law, as witnessed by the pervasiveness of violence against women, which in turn generates and reinforces women’s poverty.

Even when women have attained formal equality before the law, structural inequalities persist which restrict women from full participation in the labour force or access to capital assets and entrepreneurship opportunities. Anti-discrimination laws, while important, have only made limited inroads into this problem.

2.1 Poverty Constituted by Law Although great strides have been made in many countries to provide equality before the law, there are still too many jurisdictions which maintain directly discriminatory laws.5 Many of these laws seriously curtail the ability of women to access paid work or property rights, therefore being a direct cause of women’s poverty. This is particularly true of laws on marriage, property and inheritance. In many countries, women are still deprived of full legal status on marriage;6 and it is commonplace for 5 World Bank and International Financial Corporation, Women, Business and the Law 2014: Removing Restrictions to Enhance Gender Equality: Key Findings, World Bank (2013) 8.

6 Botswana, Burundi, Cameroon, Central African Republic, Chad, Comoros, Democratic Republic of Congo, Republic of Congo, Cote d’Ivoire, Gabon, Guniea, Guinea-Bissau, Madagascar, Mali, Mauritania, Niger, Rwanda, Senegal, Somalia, Sudan, Swaziland and Togo. Ibid.

Page 6 inheritance laws to discriminate against women.7 Customary law, recognised as a source of personal law in a number of countries, frequently provides for patrilineal succession, excluding women from inheritance;8 and in a number of countries, such laws are exempt from constitutional equality guarantees.9 Such laws have a direct impact on women’s economic activity and therefore women’s poverty. Absence of property rights means that women are vulnerable to being precipitated into destitution on widowhood or divorce. Women who are subject to early marriage, to treatment as minors under the guardianship of male relatives, to eviction from their property on widowhood, and other legal forms of discrimination, are inevitably highly limited in their ability to undertake paid work, or to benefit from paid work in terms of income, training, career progression or solidarity at work.

Without secure rights to education, property, social security or contract, labour market participation is severely compromised: where women can access jobs at all, they are likely to be precarious or on poor terms and conditions. Women lack collateral to take out credit and are therefore seriously constrained in even the most basic of entrepreneurship activities. Women who are not permitted to leave the house or to travel freely are clearly cut off from income earning opportunities. Hence women might be poor even within well off households. Lack of access to independent resources in turn means that they have limited power and agency within the family and women who are subject to domestic violence might find it impossible to escape.

7 Ibid: for details see Klugman and Twigg in this volume.

8 See further Masengu in this volume.

9 M. Hallward-Driemeier and T. Hasan, Empowering Women, Legal Rights and Economic Opportunities in Africa, World Bank (2012).

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enforcement of existing laws in relation to women. Although laws against violence and assault exist in all countries, in many countries, these are not used to curb what the World Bank has called the “epidemic of violence” against women.10 The scale and prevalence of violence against women are constantly referred to by UN treaty monitoring bodies such as CEDAW and CERD. In the most recent reporting round, the CEDAW committee referred with concern to the scale of violence against women in its concluding observations in relation to the Philippines, Nepal, Bangladesh, Brazil, Nigeria, Botswana, India, South Africa and Zambia, but there are many others.

Violence includes domestic violence, rape, acid throwing, dowry related violence, fatwa-instigated violence and sexual harassment at work, with alarming rates of violence against migrant women, Dalit women, and women from ethnic minorities.

The threat of rape and sexual assault is a particular problem for women and girls living in urban slums and informal settlements, where lack of access to adequate sanitation facilities exacerbate the risks of sexual violence.11 Absence of protection against violence not only deprives women of their right to personal integrity but also functions as a serious obstacle to education, paid employment, entrepreneurship or other ways of alleviating poverty. Poverty and violence interact in a vicious cycle. Women facing sexual harassment at work, violence at home or violence on the streets, are unlikely to be able to participate on equal terms in the paid labour market. Poverty also forces women to carry out daily economic activities which put them at higher risk, such as fetching wood and water,

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households, or engaging in precarious work generally. Women who lack sufficient economic resources may have to engage in transactional sex, exposing them to heightened levels of violence.12 Other discriminatory customary and traditional practices are condoned by the law.

The CEDAW committee has referred with concern to a number of such practices.

These include, in the case of Botswana, widowhood rites and practices, the payment of bogadi (dowry) and privileges in favour of men, such as their customary right to treat their wives in the same way as minor children.13 In its concluding observations on Zambia, the Committee refers to harmful practices such as sexual cleansing,14 polygamy, bride price (lobola) and property grabbing.15 In the case of Nepal, the committee has expressed its concern at harmful traditional practices, such as child marriage, the dowry system, son preference, polygamy, and accusing widows of witchcraft. A particularly harmful practice is that of chaupadi, according to which women and girls are banished from the house during menstruation. Despite a ban being imposed by the Supreme Court on the chaupadi tradition in 2004, the practice remains widespread. Also highly problematic is the practice of deuki, whereby young girls are offered up to the local temple in the hope of gaining protection from the 12 Fredman and Goldblatt Substantive Equality, UN Women Discussion Paper Series (Forthcoming, January 2015).

13 CEDAW Committee, Concluding Observations: Botswana (2010) CEDAW/C/BOT/CO/3 at para 23.

14 A practice whereby a widow is required to have sex with a male relative to ‘cleanse’ her of her husband’s ghost. It was reported in 2009 that the Zambian chiefs had decided to ban practices of sexual cleansing and spouse inheritance: see Abigail Chaponda ‘Traditional leaders ban sexual cleansing’ Zambian Post (23 November 2009) http://www.postzambia.com/postread_article.php?articleId=2263&page=1 (accessed 13 July 2014).

15 CEDAW Committee, Concluding Observations: Zambia (2011) CEDAW/C/ZMB/5-6 at para 19.

Page 9 gods. Deukis are often forced into prostitution from a very young age, and because they are deemed impure they have no prospects of marriage or future employment.

This practice too has been formally abolished in Nepal, but continues to occur in some areas.16 In the case of South Africa,17 the CEDAW committee has referred with concern to entrenched harmful cultural norms and practices, including ukuthwala (forced marriages of women and girls to older men through abduction), polygamy and the killing of “witches”; in Nigeria, to widowhood rites, including humiliation, seclusion, and denial of the right to bathe or move around;18 and in the case of Kenya, to female genital mutilation (FGM), polygamy, bride price and wife inheritance.19

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