Gender and the Law in Practice for Development
Updated: Feb 13, 2020
Malawi recently took a historic step in the fight against child marriage in amending Section 22 of the Constitution, calming the appetites and speed for marrying girls before they hit 18 years of age. At last, the country had shown it can harken to the growing calls by activists, chiefs, mothers and the girls themselves to take measures that safeguard a national future that should not only work for boys and men. Child marriage perpetuates the cycle of poverty, therefore proving detrimental to the lives of the youth who are already poor and inadequately protected in many other ways.
While the constitutional amendment is a critical step, it is also part of a bigger picture. Not only is this a victory for gender equality; the gains on development are insurmountable.
A 2015 report on research by the International Centre for Research on Women (ICRW) and the World Bank Group indicates economic impacts of child marriage are not only on the girl child, but extend to her community. Furthermore, it suggests that eradicating child marriage could lead to the overall economic growth of countries. So, Malawi’s constitutional amendment will be a catalyst for the development of our young girls as well as Malawi as a nation. Ending child marriage means girls have access to, inter alia, education, healthcare, and the benefits of reduced socio-economic inequalities.
This article argues that law and gender have a key role to play in development and explores the limitations our institutions face as they engage in implementation.
Let us start by understanding development as not merely an abstract idea, left in the realms of economic calculations, but also as a process enshrined in the Constitution of Malawi. Our Constitution’s Section 30 provides that ‘all persons shall have the right to the enjoyment of economic, social, cultural and political development, and that the state shall take all necessary measures for the realization of this right.’
Exemplified by the recent amendment, law, while acting as a tool of social order, plays an integral role in the quest for development. On the flip side, however, the same law may act as a barrier to development, as the Constitution of Malawi previously facilitated child marriage and therefore deprived young girls access to essential public services like education and healthcare. Given this reality, Malawi’s prosperity as a nation partially depends on its legal framework.
The law drives change towards gender equality, an important element of development. For example, Malawi introduced the Gender Equality Act (2013) and the Protection against (Prevention of) Domestic Violence Act (2006.) In this way, the law has been responsive to the need to protect women, who were not adequately protected by the law, and therefore were more vulnerable and unable to fully participate in the economy. This then triggers a “domino effect”, because once steps are taken towards ending gender inequality, advancements in development begin to manifest.
We know that gender equality is important in the quest for socio-economic development. Where men and women have equal opportunities and rights in all spheres of life, both sexes are able to make independent decisions that positively affect their lives, as well as those of their families.
Therefore, the symbiotic relationship between law, gender, and the economy is crucial if development will fully occur.
However, the law is only as effective as we make it, and it is not enough to have a legal framework that only ‘appears’ conducive to gender equality and development. Implementation is inevitable. Therefore, institutions and systems must exist to ensure laws are executed as they should be.
Section 7 of the Constitution of Malawi charges the executive branch of government with responsibility for the implementation of all laws. Constitutional bodies are also set up to review and investigate matters relating to the law. Such bodies include the Law Commission, which has the power to review and make recommendations regarding the law; the Human Rights Commission, whose primary function is to protect and investigate violations of rights; and the Ombudsman, whose function is to investigate matters relating to injustice.
As is suspected, there are structural constraints that limit the full potential of these institutions, and may inhibit them from delivering gender-responsive development. One common limitation among the institutions is that of lack of human and financial resources.
If, say, the Law Commission is understaffed, it cannot timely respond to the needs of the plethora of laws. As much as they can identify areas in the law in need of reform, it may not be able to effectively carry out its mandate. In a world where resources are scare, yet wants are unlimited, this further lack of resources means that institutions must prioritize, a process that seems to give precedence to anything other than gender considerations. In this way, some laws are merely on paper, and are left on the backburner until it is most convenient.
Another limitation affecting legal implementation, ironically, is the legal system itself. Malawi’s dual legal system means customary and common laws coexist. The gender-responsiveness of the law in the country, then, depends on the harmonization of the two systems.
This is particularly severe in rural areas, which host almost 84% of Malawi’s population, according to 2015 World Bank estimates. The prevalence of customary law and practices, more than usual, threatens women’s advancement and gender equality because of the mainly patriarchal tenets on which they are grounded. So, despite the existence of laws prohibiting it prior to the amendments, child marriage still took place in the rural areas because it was custom. This served as a limitation to implementation of laws as institutions may face difficulties in harmonising the two.
Lastly, social attitudes also act as an important barrier in legal implementation. Attitudes imprinted through socialisation mean, in as much as the law is gender-responsive, this will not translate into reality unless institutions and people are willing to implement them. Social attitudes make societies reluctant to accept the law and changes therein. So although gender equality and non-discrimination are key principles of the supreme law of the land, in a country in which patriarchy is rife, such notions may not be shared sentiments. Therefore, it may be difficult in practice to convince an 80-year-old man in rural Malawi that his 13-year-old great-granddaughter is unripe for marriage as it is in violation of her rights per the Constitution. A position her great grandmother would also usually share.
Before winding up, an important institution providing the protection of public safety is the Malawi Police Service, established by Section 152 of the Constitution. Again, this institution is subject to the same social attitudes that may not promote a gender-sensitive environment. A physically abused woman seeking Police redress will get none from police officers if the abuse is trivialised by Police officers. It is not infrequent to see them aloof from involving themselves in her “domestic issues” solely because of the norms constructed by socialisation that dictate the normalcy of a man beating his wife.
Law, gender and development depend on each other, and will continue to do so organically as we quest for development. Malawi’s prosperity requires that this relationship is strengthened. The inadequacies of legal implementation must be eradicated to pave way for gender-responsive development. The law must, in practice, address demands for gender equality integration in development, and the institutions entrusted with the task of implementation and reform have to ensure the law becomes reality on the ground.
It will not be enough to make mere impressions of the law.
About the Author: Ulemu-Hannah Kanyongolo is 20 and going into her second year of law school at Chancellor College of the University of Malawi. She is the chairperson of the Gender Justice Clinic at the faculty of law. She is a proud feminist and passionate about gender issues. She aims to play a significant role in the national and global efforts to fight for the rights of women and girls.