BERF Gender and Customary Law in Business Environment Reform

This study indicates the ways in which customary laws and practices can impact on women as owners and managers of enterprises and as employees of these enterprises. It highlights the ways in which customary laws and practices intersect with the three elements of Business Environment:

  • regulatory and administrative framework through the processes by which business registration and licensing are administered;
  • the policy and legal framework through discriminatory labour laws that have implications for the sectors where women can work or the hours when they can operate their businesses; and
  • the institutional arrangements through women’s limited representation in decision-making bodies that administer land rights or hold public bodies to account.

Components  directly affected by customary laws and practices include:

  • Access to finance, with banking laws discriminating against women’s ability to apply for loans or credit without a signature from a male family member;
  • Business registration and licensing, with restrictions imposed on interacting with men who are not family members;
  • Land titles, registration and administration, with a lack of property rights limiting women’s ability to use land as collateral; and
  • Access to commercial courts and dispute resolution mechanisms, where judges may rule in favour of male on the basis that men are responsible for the family.Customary laws and practices particularly can impact women’s physical mobility and ability to access employment and their freedom to choose what work they do, where they work and when – particularly if they need a husband’s permission to work. Significant areas that particularly affect women entrepreneurs include:
    • Land and property rights that constitute a barrier to growth of women-owned enterprises. Restrictions on women’s ability to own, sell, acquire and use property limit their access to capital by means of credit and equity. For example, restricted property rights limit women’s prospects of having savings, investments and sufficient collateral for loans and therefore their prospects to start and run businesses.
    • Inheritance practices and norms, as inheritance is one of the key means of acquiring assets. Marriage can impact women, including their inheritance and land rights, and therefore on women’s access to collateral and finance for business growth. Child marriage is also indirectly linked to a reduction in the likelihood of formal employment and diminished earnings throughout a woman’s lifetime.
    • Religious laws and women’s land, property and inheritance rights that may be particularly tenuous in cultures where polygamy is the norm. In addition, customary practices such as paying for brides and polygamy can reduce women’s security in relation to land.

The scoping study identified a few positive and promising examples of reforms and interventions that directly or indirectly address customary law and practices to create a more gender equitable Business Environment. These include reforms around land and property rights in Ethiopia to increase women’s ownership and security of tenure and their labour force participation, and reforms around secured transactions system in China to enable Small and Medium Enterprises, including many female-owned businesses, to draw on a wider range of movable assets and improve their access to finance.

Based on the evidence reviewed, the scoping study has identified a few areas for a more in-depth follow-up study – using case studies to analyse changing customary laws and practices over time for Business Environment Reform on:

  • land tenure/titling reform; and
  • access to finance.

Within these case studies, it will be important to look at marital property regimes (as well as other factors) and how these have impacted the prospects for women’s (or joint) businesses.