EQUALITY OF THE SEXES

The Universal Declaration of Human Rights reflects the fact that the rights of women are measured by reference to the rights of men: ‘Article 16. (i) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family.

(2) Marriage shall be entered into only with the free and full consent of the intending spouses.’

The principle of equality between the sexes in marriage has been elaborated by the Economic and Social Council of the United Nations, which

'Believing that legal equality of husband and wife and the sharing by spouses of the authority, prerogatives and responsibilities involved in marriage are of benefit not only to the status of women but also to the family as an institution,

Noting that the legal systems of many countries result in a subordinate status of the wife in family matters of fundamental importance, and that under numerous legal systems women are, during marriage, deprived of important personal and property rights or are subject to the authority and control of their husbands in the exercise of these rights,

Recommends that governments:

(a) Take all possible measures to ensure equality of rights and duties of husband and wife in family matters;

(£) Take all possible measures to ensure to the wife full legal capacity, the right to engage in work outside the home and the right, on equal

¹ Alastair Scobie, Women of Africa, i960, p. 1. * Ogden Nash, The Private

Dining-Room and other new verses (London, 1953, Dent), p. 123.

terms with her husband, to acquire, administer, enjoy and dispose of property.’¹

The work of the United Nations through its specialized agencies, and particularly through the Economic and Social Council and its Com­mission on the Status of Women, has been an important force behind the recent world wide movement of opinion regarding the position of women.

Ideas have changed, and are changing still. But in practice much remains to be accomplished. The lawyer’s task is clearly only part of the whole. There is still much prejudice, and much in law or custom that imposes on some women not merely an inferior, but sometimes a degrading status. But in many countries too, and certainly at the international level, the broad lines of social and therefore legal change have been charted.

Pressure for law reform may come from several sources: from the educated and vocal women who usually, in developing countries, form a small but powerful minority; but also, not nowadays to be overlooked, from the ordinary women of the country, awakened as they so often are to the possibilities of tomorrow, and. wielding the power of the vote; from progressive politicians responding to that power and. planning the creation of modem states; from economic forces; and from international sources.

So swift has been modem political and economic development that existing legal systems are often sorely strained to deal even with the present social patterns. Many African territories have legal systems embracing several types of law. Often these systems are creaking under the strain of social changes, already accomplished, to which they have not been adapted. In. two spheres in particular this strain is most evident—land law and Busily law.

¹ Resolution 503 D (XVI) of. the Economic and Social Council, at its 736th plenary meeting, July 23, »953-

in parts of East Africa will shortly be discussed; but it may be remarked here that they result in situations which would certainly have seemed too fanciful for comic opera plots by W. S. Gilbert. Unfortunately that analogy, accurate as a matter of fact, fails utterly to indicate the tragedies of personal and social confusion which result from the confusion of the law. Reform of the law relating to women would often be an urgent necessity even if it were not for the widespread change in commonly held notions about woman’s proper place.

The principle of equality of the sexes may sometimes be accepted only with reluctance, especially when it is construed as an alien notion reflecting adversely upon a traditional social system. The point has been stated for India by Derrett:

‘The notion “equality of the sexes” is a foreign importation in India, and is viewed with suspicion to this day. The educated Hindu who is in a position to,discuss this matter with a foreigner will not hesitate to say that there is something indecent or improper in positing ‘equality’ between brother and sister, or between husband and wife. They are unequal because they are dissimilar, and girls’ inequality may in fact be a sign of their superiority: in other words females may be given special treatment not because they are despised, but because they are peculiarly honoured and protected.’¹

A man’s feelings of respect and tenderness towards certain women is a characteristic of the Hindu family: in particular, ‘the apotheosis of the mother has reached a greater height in India than anywhere else’.¹ Nevertheless, in modem India the need has been felt for sweeping measures of law reform designed to improve women’s status. In surveying The Position of Women in Hindu Civilisation, Altekar refers to this contrast between popular male attitudes and actual legal disabilities:

‘Even during the last two thousand years the average woman continued to lead a happy and contented life, fondled by her parents, loved by her husband and revered by her children.

¹ J. Duncan M. Derrett, ‘The Legal Status of Women in India from the most ancient times to the present day’, Recuuls de la Socilti Jean Bodin, 1959, Vol. XI, pp. 239-40.

^! A. S. Altekar, The Position of Women in Hindu Civilisation, Banaras, 2nd edition, 1956, p. 101.

prevalence of polygamy and supersession. Society’s attitude towards her was also one of patronizing condescension.’¹

Such conflicting attitudes in a society often make it difficult to assess sucdncdy the general position of women. In Elizabethan England women, distinctly subordinate to men in legal rights to property or in political influence, nevertheless received considerable respect from their menfolk, especially among the upper classes:

‘The passionate but formal romance of the days of chivalry, the long ages of adoration of the Virgin Mother in the medieval church, had given the lady a place in the sun. It was artificial enough. Much of the formal courtesy disappeared when the ownership of an estate or estates was in question; but in ordinary times the lady received a homage that was emphasized by the fantastic theatricality Elizabeth demanded from her courtiers. This could not but have influenced the behaviour of all men to all women.’²

The principal concern of this discussion is with the relevance of the law and its reform to the position of women; but women’s status is clearly not a matter of law alone. Concentration on the law may give misleading impressions. It is said to be difficult

‘to generalize about the position of the English country-women in the Middle Ages. The law is clear enough and the Church’s view is clear enough. But men and women are never ruled in their personal relationships by law alone or by the Church alone.

And a similar contrast between law and everyday life may be found in Africa. Thus among the Bamenda of the Cameroons it was recorded that although legal rights to land are vested in the men, ‘in the domestic context women, as wives of these men, exercise real control over land use by virtue of their rights as producers over the crops they grow’.⁴

Two matters are of particular relevance. First, in considering the position of women in any society it is seldom possible to collect and

¹ Op. at., pp. 360-1.

² G. E. & K. R. Fussell, The English Countrywoman, 1953, p. 19.

¹ Doris Mary Stenton, The English Woman in History, 1957, p. 98.

⁴ Daryll Forde, Preface to Phyllis M. Kaberry, Women of the Grassfields, 1952, p. vi.

women’s status and law reform assess the relevant evidence from law, social and economic life, religion and ethics, and on that basis to award the women of that society a definite rung on the fictitious ladder of women’s status. This is essentially a subjective assessment of numerous and complex factors. Kaberry concluded that any attempt ‘by a species of anthropological or moral arithmetic, to decide whether the position of women in general is high or low, or good or bad is. •. likely to prove profitless’.¹ She illustrates this by quoting two contradictory views of the position of Bamenda women from experienced missionaries. One thought they had ‘achieved a remarkable degree of freedom and independence’, while the other described their status as ‘alarmingly low’.²

Secondly, just as law is only one factor in the total position of women, although of course a highly significant one, so too reform of the law is only one of the instruments by which that position may be altered.

Apart from law reform, other factors of vital significance to the improvement of women’s status lie within governmental control to

Op. at., p. vii.

² Op. cit., p. vii.

¹ 2nd. edition, 1926, p. 33.

some extent. Changes in public opinion are of course of prime importance. Such changes are very closely linked with the expansion of education. It is unfortunately true that in Africa women have benefitted in markedly smaller numbers than men from the limited educational facilities which have been available. The proportion of girls who ever commence school attendance is much lower for most countries than die proportion of boys; and the falling off in numbers proceeding from each school grade to the next, considerable as it is for boys, is even higher for girls. This is partly why the proportion of women students at universities in tropical Africa is so low (rarely as high as ten per cent of the student body). Needless to say neither law nor Government policy is necessarily to blame for the deficiencies of female education. Economic demands upon the family, social patterns such as early marriage for girls, and the general climate of opinion giving priority to boys, are all involved. In reporting on African education in Uganda in 1953, de Bunsen gave other reasons including the moral dangers involved in travelling long distances to attend senior classes which are perhaps coeducational. Few modem African governments need to be convinced of the importance of education at all levels to the development of their countries. Probably no other factor will be of more significance in the improvement of women’s position in society. Special provision may well be necessary, such as the ‘Fundamental Educational Programme for Women’ proposed by the Democratic Party of Uganda in its policy statement, Uganda Women March to Freedom, or special projects of community development.

A second factor, the increased participation of women in the economic life of a developing nation, depends to a great extent of course upon national economic policies: perhaps in encouraging the establishment or development of those industries in which women’s labour can most effectively be used or where, as in many parts of Africa, women’s work is traditionally in agriculture, in seeking to improve the level of efficiency in production or marketing of crops. (In so far as much of the wealth looked for by developing African countries can come only from their soil, women in such societies will play a key part in economic development—a point which does not appear to have been fully discussed at the meeting of the International Institute of Differing Civilizations in 1958, when ‘Women’s Role in the Development of Tropical and Sub-Tropical Countries* was under consideration.) Economists have stressed that industrialization does not necessarily involve the absorption of women into industry, unless women’s status and law reform

there is a shortage of male labour or unless women’s present occupa­tions are relatively unproductive. Thus, in Uganda,

‘Whether a transfer of women from their traditional occupation as farmers into industry will increase the national income must depend upon their relative marginal productivity in the two spheres.’¹

While it may not always be in the national interest to encourage women to enter industrial employment, clearly there should be no legal restriction on the freedom of a woman to choose her occupation that does not apply to a man. The Economic and Social Council of the United Nations has resolved in this sense:

‘Noting that in the legal systems of many countries the husband has the power to prevent his wife from engaging in independent work and that in some he has control over her earnings,

Believing that this limitation of the legal capacity and of the property rights of married women is incompatible with the principle of equality of spouses during marriage as proclaimed in the Universal Declaration of Human Rights,

Recommends that governments take all necessary measures to ensure the right of a married woman to undertake independent work, to carry it on and to administer and dispose of her earnings without the necessity of securing her husband’s authorization.’¹

Further, some special protection for women in industry may be desirable even though it gives them unequal (favourable) treatment in comparison with men. Many common law African countries have such provisions, often at present in an embryo form only, prohibiting, for example, the employment of women at night or on underground work in mines. Other countries, such as Egypt, have more complex systems of protection. There is a danger in excessive legislation on this topic: if the employer of female labour has too many special rules to observe he may decide to employ men instead. It is possible to legislate women out of employment in this way. This may also happen if equal pay for men and women becomes obligatory, as recommended, though not unanimously, by the meeting on ‘Women’s Role ’organized by the I.N.C.I.D.I.

In parts of Africa, it may be a serious breach of traditional custom for women to engage in employment in towns—often due to an

¹ W. Elkan, The Employment of Women in Uganda, p. 6 (a roneoed Conference Paper of the East African Institute of Social Research).

¹ Resolution 547 J (XVIII), 805th plenary meeting, July 12,1954.

association in the minds of their menfolk between urban employment and prostitution. But there is in this respect a striking difference between, for example, East and West Africa: and women from the for­mer would be astonished to see the extent to which their sisters in the towns of West Africa engage in trade at all levels, but particularly petty trade, on their own account. A recent study shows that of 171 women interviewed in central Lagos, 87 per cent were trading and only 8 per cent were not working; and of the many hundred stall holders in the markets of Lagos Island, five-sixths were women.¹ Another report from Nigeria shows that among the Afikpo Ibo, ‘almost all the women both farm and buy and sell in the market’.² In the professions there is seldom any legal discrimination against women, but the lack of educational opportunities has limited the numbers of them who could acquire professional qualifications. In West Africa there are not a few African women doctors and lawyers, including some magis­trates; but in East Africa these are rare indeed.