Restrictive laws and customary practices set high legal hurdles for women entrepreneurs
The Democratic Republic of Congo is among the starkest of the countries studied here in terms of financial inclusion. As is the case with other jurisdictions, its Constitution establishes equal opportunity laws. Moreover, the relevant Constitutional Articles are bolstered by laws on gender equality, including the Law regarding Women's Right's and Gender Equality that were implemented subsequent to the Constitution. However, other laws—namely, the Family Code and the Labor Code—directly contradict the Gender Equality Law. Prevailing marital law and continuing customary law surrounding land rights in particular radically limit women's economic freedom across many of the areas studied here. The DRC's legal framework is fraught with legal contradiction and severely limits women's economic freedom.
Several non-discrimination laws do exist. Article 14 of the DRC's Constitution provides that the State shall have the duty to ensure the elimination of all forms of discrimination against women and ensure the respect and promotion of their rights. Articles 20, 21 and 22 of the Law regarding Women's Rights and Gender Equality prohibit discrimination against workers based on gender, including pregnancy and discrimination in hiring, job assignments, conditions or work, remuneration and promotion. Furthermore, Article 36 of the Gender Equality Law states that measures needed to correct existing inequalities can be taken by progressive implementation of gender equality through affirmative action in the private domain. Problematically, the Family Law and the Labor Law have not been updated uniformly to include the themes enshrined in the Gender Equality Law. Further, despite the above language and the country's having signed on to various international legal frameworks that would similarly ensure equal opportunity for women, our research indicates that the Family Law reflects the legal reality for women.
Marital arrangements also seriously limit women's independent agency. Married women face firm restrictions that span business law, banking and regulation, property rights and access to collateral, and access to justice. Upon choosing a martial property regime, the spouses are allowed to specify that each will manage his or her own assets. However, regardless of which regime the spouses choose, Article 45 of the Civil Code entrusts the husband with management of both joint and individual property. Similarly, though the Family Code suggests that a woman may maintain autonomy over property she independently acquires during the marriage, it goes on to stipulate that if management and administration of that property by the wife "undermines the harmony and financial interests of the household," the husband may assume those responsibilities instead. A married woman needs a consent letter from her husband to form a business. Her husband's permission is also required to open a bank account. Unmarried women can at least be said to possess certain of these freedoms: For instance, while there are no evident restrictions on an unmarried woman's ability to enter into contracts, a married woman requires the consent of her husband. This same dynamic holds true in the case of obtaining a loan or opening a bank account. Freedom of movement is restricted for married women, who are legally obligated to live with their husbands and to follow them wherever they reside. All told, such restrictions impair women's ability to act as independent economic agents or equal collaborators in joint ventures.
In an economy centered on land, the deep disenfranchisement of women in the area of land rights is as stark in its effects. In contrast to the restrictions summarized above, land rights are equally limited for unmarried women. This is due largely to the persistence of customary law in this area. Women are excluded from Kalinzi, a set of customs governing the allocation of land, with land that is allocated to a given household going exclusively to the head of the household—legally defined as the man. Consequently, insofar as women can be said to have land rights, they have these secondary land rights only as extensions of either their husband or father. There are several mechanisms through which women can, in principle, access land. These mechanisms are: temporary leasing of land (Bwassa); inheritance (Bwimet); and purchase (Bugura). Among the three methods of accessing land mentioned above, the temporary leasing of land remains the most widespread in the areas studied; the other methods continue to be very rare.
The second-class citizenship of women when it comes to land rights extends to the dominant customs governing inheritance. Though by law women can inherit—and though in certain communities, there is evidence of widowed women becoming owners of their deceased husbands' land (even as they are forbidden to sell it)—land is predominantly passed on to men.
Adding to this picture of financial exclusion in the DRC, there is little indication of government programming geared toward the enfranchisement of women.
This publication is provided for your convenience and does not constitute legal advice. This publication is protected by copyright.
© 2017 White & Case LLP