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Empowering East Africa’s women

How lawyers are helping women benefit more from the wealth created by the extractive sector.

Women travelling a road in Buliisa District Uganda
Martin Jjumba

Casting your eyes around any rural area in East Africa, the first thing you notice is how hard women work. They are an everyday presence on every road as they carry water, firewood and crops over long distances. When not braving punishing distances in the rain or scorching sun, they labour on farms, planting, weeding, harvesting. In towns, they drive much of the local commerce, engaging in one form of trade or another. Virtually all of their work is subsistence-based and strenuous. It’s also mostly unpaid, aside from what they can quietly tuck away in their sash. The well-being of their households depends on their thrift.

It’s been this way forever, it seems, along with the perennial promise of African economies that will emerge from their painful pasts and empower this most deserving class of workers. 

These days, there ought to be reason for hope. In recent years, economic growth in East Africa has consistently outpaced the global average as well as that of the rest of the continent. Kenya and Uganda regularly feature among the top performers, with GDP growth in 2020 expected to top six per cent. 

Meanwhile, governments are keen to tap into the region's natural resource bounty. Recent oil, gas and mining discoveries in Kenya, Tanzania and Uganda offer real potential for jobs and business opportunities, not to mention funding for improved infrastructure, education and social programs. 

Why wouldn't women in rural communities stand to benefit from these new investments? 

Because they get left out of negotiations over everything from the benefits of extractive contracts to compensation and royalties, says Jennifer Koshan, a law professor at the University of Calgary with expertise in gender issues.

“There can be a lack of inclusion of women in terms of what these resource extraction projects can bring to communities,” she says. “So they can be quite disruptive to local economies.”

The problem is compounded by the fact that many women are not aware of their rights—and even when they are, they are ill-equipped to exercise them. That's what a five-year Canadian project—Supporting Inclusive Resource Development in East Africa, or SIRD—is setting out to change. Managed by the CBA's International Initiatives Department (CBAII) and funded by Global Affairs Canada to the tune of $9.5 million, SIRD's goal is to get women's groups and leaders more involved in consultations, negotiations and law reform advocacy related to the extractive sector.

"We want to have more informed and empowered women. We want there to be a voice for them," says Mwanasha Bakeri, a community organizer in Kwale county, Kenya, where Base Titanium has invested heavily in a mineral sands project that is expected to contribute close to US$1 billion to the country's GDP.

Bakeri is known in international development parlance as a community champion. For the last two years, she has been an invaluable local presence, setting up referral networks in various communities to direct women to local lawyers who can help them.

Over the same time frame, CBAII has also enlisted the help of CBA volunteers to train those lawyers, giving them knowledge and skills in natural resource management. The training programs are offered in partnership with the law societies in Kenya, Uganda and Tanzania.

No land, no voice

 Jennifer Koshan, University of Calgary
Jennifer Koshan, University of Calgary Photo credit: Todd Korol

The common complaint, almost anywhere in the world, is that the benefits of the extractive sector tend to end up in the pockets of governments and global financial centres, remaining out of the reach of those most in need. This leads to conflict between local communities, governments and the extractive companies, who often disagree about land control, compensation, profit- and revenue-sharing and labour issues. 

But in East Africa, it’s the women who are most overlooked. Unfairly so. By some estimates, women in Uganda grow somewhere between 70 and 80 per cent of the food, generating most of the income for many families. Yet they own less than eight per cent of the land. In Kenya, it's estimated that only one per cent of women hold land.

"Women typically don't control assets," says Janet Fishlock, a social development specialist based in Toronto who recently volunteered with the SIRD project in Kenya and Uganda. "In some cases, they may have the legal right to [those assets]—and the rights of women to own property may even be enshrined in the law—but cultural practices don't match that."

In Kenya, women's rights to land and property are indeed protected under its constitution. But in practice, customary laws and cultural and social norms still take precedence, making it difficult for them to own or inherit land. Only married women can access land through their husbands.

The Ugandan constitution also forbids discrimination against women. Even so, under the country's Succession Act, a widow has no entitlement to the matrimonial home after her husband's death. And while the government has reviewed its laws to remove gender-biased language and pursued land policies aimed at recognizing the formal and customary land rights of women, old habits die hard. The government also enacted laws to protect women’s rights, including the Domestic Violence Act. But enforcement of these laws is practically inexistent. “All our laws have been sanitized and are now gender neutral with no gender-biased language,” says Caroline Kanyago, a lawyer and gender expert at the Human Rights Network in Uganda.  “It has been very progressive but there are no clear legal strategies that have been designed. So most of these laws are on the books. But the reality is different.”

In most rural communities in East Africa, it's the men who, publicly at least, dictate much of what happens in political, social and economic life. Rarely do women get much say in how money is spent, even though they often have a better understanding of the environmental, social and economic threats posed by the extractive sector.

"Decision-making structures don't prioritize women's voices," says Fishlock. "They tend to be dominated by men, so their voices and concerns don't get priority at the table."

But ask the local women in Kibwaga, a farming community located a stone's throw from the Base Titanium mine in Kwale, and the grievances range from complaints about dust contaminating the local water to displaced wildlife destroying crops. They've suffered losses of food and income and witnessed the degradation of family and cultural ties. Health issues are a prominent concern: there are more cases of malaria now, as mosquitoes breed in abandoned mining holes that fill with stagnating water.

Also worrisome is the large influx of male migrant workers that mining projects attract.

"Sex work increases," says Robyn Trask, a SIRD volunteer and general counsel at the British Columbia Teachers' Federation. The surge contributes to increases in HIV/AIDS, human trafficking and teenage pregnancies. "Or men come in and start relationships with women who live in the community, and maybe even have children with them. But they leave when the project is done, because they're not from that community." 

The grass isn’t always greener

Caroline Kanyago, Human Rights Network, Uganda
Caroline Kanyago, Human Rights Network, Uganda Photo credit: Martin Jjumba

All of these issues are reason enough to want to move—and some families do, after negotiating resettlement and compensation terms with the government and the extractive company.

Others might hold out for a better deal, but they risk being left behind if they pass on a final offer. In Kibwaga, disagreement about resettlement split the community. After a first wave of families agreed to relocate, the local school had to shut down because there were too few students left. The remaining children now have to walk eight kilometres to the nearest school on poorly maintained roads that get flooded by heavy rains.

It's not as if compensation and relocation are a panacea, either. These arrangements are made with families that have little skill—and no leverage—to negotiate favourable terms. At first blush, an offer from the exploration company can seem like more money than a family has seen in a lifetime, and the temptation to jump at the chance is too great. But there is no guarantee that they will be relocated to a good patch of land, or that the head of a family—often lacking financial literacy—will hold on to the money for long. And since women rarely receive any form of payment, it is they who often find themselves worst off, having lost access to the resources their land once offered them. For these families, a change in scenery can quickly sour into landlessness, joblessness and frayed family bonds.

"When you lose your livelihood and what you've built for yourself and your family, without having had any input, there can be a great deal of loss," says Tina Parbhakar, a Vancouver-based lawyer who volunteered on the SIRD project in 2019, travelling to Kenya and Uganda to offer training on trauma-informed lawyering. "Then when communities get broken apart, there is also social capital that gets lost, and there can be a lot of social dysfunction connected to that," she adds, citing higher rates of domestic violence, family break‐ups and the onset of personal trauma.

Of course, these stories are not unique to Africa. High rates of sexual harassment and domestic violence are prevalent in remote mining towns around the world, including Canadian ones, as are negative impacts on the environment, human health and living standards. Canadian resource companies are all too familiar with the conflicts that can arise between companies and local communities these impacts.

That’s why Canadian lawyers volunteering on a project like SIRD "have to tread very lightly," says Koshan, who helped develop a gender-based training curriculum for the SIRD project. "We can't claim to be perfect ourselves, or to have fully worked through issues like sexual violence or how gender and other identity factors may play out in the context of extractive industries. But we've learned lessons over the years of engaging in our own human rights struggles at home that we can bring to bear when it comes to working with international partners."

Heading for firmer ground

Tina Parbhakar, North Shore Restorative Justice Society, Vancouver
Tina Parbhakar, North Shore Restorative Justice Society, Vancouver Photo credit: Peter Irungu

Given all of this, what role can Canadian lawyers play in helping women in East Africa?

"An important piece of the gender picture when it comes to the extractive industry is access to justice and access to information," says Koshan. "Even where laws on the books are positive, the ability to translate those laws into positive legal outcomes for people on the ground is often quite a different thing."

The first task is to make sure women have the resources and means to access legal services. To that end, SIRD's volunteers have focused on training pro bono lawyers at the community level and encouraging them to hold legal aid clinics for women. The training has covered community engagement, advocacy skills, fair compensation during forced land acquisition and relocation plans and policies, as well as environmental, health and safety issues.

Equally important is helping women exercise some form of control over land they can call their own. 

"It's all nice to explain to women and women's organizations what their rights are when it comes to resource extraction, whether it's having the laws upheld, whether it's the way that they negotiate and how they can protect themselves in negotiating with industry," says Camille Vézina, a lawyer and consultant with expertise in community engagement in the extractive industries. "But if you don't even have paperwork that shows that you have land rights, you can't really enforce any of those, because no one is going to listen to you.

"So when industry all of a sudden shows up and says, 'Hey, we want to negotiate with the person that owns this land,' well, unless you're able to prove you're that person, you're going to have a hell of a time reaping benefits from any of those agreements, or protecting your rights or protecting your land."

Hopefully, the law can be of some assistance. Uganda's Land Act, for instance, allows for the issuance of certificates of customary ownership as a form of protection for customary rights. But the problem, according to Jennifer Johnson, director of CBAII, is that the government issues certificates "in the name of the family head, typically a male, rather than the family as a whole."

Complicating matters further, it's estimated that at least 50 percent of unions are informal in the country because of the high cost of getting married and paying the customary dowry. What's more, polygamy is widespread in rural Uganda. "So there's normally more than one wife," says Johnson. "There will be a head wife and then other wives living on the ancestral land. And those wives aren't included at the table."

Meanwhile, it's common practice by extractive companies to rely on the local administrative official to ascertain who is in a marriage relationship. Anyone not recognized as married won't be legally protected in a land transaction unless they have some proof of their contribution to the purchase, which is rare.

For these reasons, the SIRD project is reaching out to both government and industry to explore creative ways of protecting women in legal and informal marriage relationships. 

Trask proposes that gender issues be given greater consideration when complying with local content rules, such as those in force in Uganda, that require companies to give preference to hiring local employees and suppliers. "We need to be thinking about what the gender component to that is," she says. "Should you contract with a catering company that's run by women, for example?"

The Ugandan government has a draft Mineral and Mining bill which, if enacted, would aims to strengthen the mining sector in the country, by addressing a range of issues from artisanal mining and community involvement to transparency. Also central to its aim is to take into account both women's and men's interests and concerns. “I find it quite progressive because this is the first law I have seen which clearly stipulates that gender mainstreaming is a core purpose of the legislation,” says Kanyago who points to provisions intended to remedy discrimination and violence against women in artisanal mining. The bill would also repeal the longstanding prohibition against companies hiring women for underground work. “But the question is whether companies will be required to implement these measures,” Kanyago adds.

Another promising development in Kenya is the recent introduction of community development agreements, now mandated by law. Regulations adopted in 2017 require mining companies to spend at least one per cent of their gross annual revenue from the sale of minerals to finance projects covered by community development agreements. Much like impact and benefit agreements in Canada, CDAs can address everything from employment opportunities for the community to investments in infrastructure and protection of the environment.

Once a CDA is signed, the advantage for the community is that, in theory at least, it has a civil remedy against the mining company.

However, convincing companies to direct some compensation to women could drive a wedge between women and men, or worse yet, lead to incidents of domestic violence, already a huge problem in rural Uganda. “And one of the challenges female [pro bono] lawyers face is backlash from communities who say that our job is to break up families,” says Kanyago. “If your husband knows that you are going to see pro bono services, he will think it will end up in the courts and that it’s going to be chaos.”

Johnson is also mindful that women could suffer blowback if they attempt to assert some ownership over the benefits flowing from the extractive sector. Still, she tries to remind companies committed to environmental, social and governance (ESG) standards—the filter used by socially conscious investors deciding where to place their money—that they can do more than just check boxes.

“They’re thinking, ‘It's not our purview to look at culture and customary law,’” she says. But not being proactive about changing the status quo is likely to be detrimental to their business in the long run, she warns, pointing to higher rates of anti-social behaviour and violence in unequal societies. To remedy that, countless studies show that empowering women is key to social development.

“So, if you want to report back to shareholders and investors on your ESG, why not put some of that 1 percent into a foundation and have it run by women?" Johnson proposes. “It’ll take more creative solutions to bring women into the process.”

Planning for a more diverse industry

Sird Banner
Photo credit: Peter Irungu

There’s no doubt that addressing such complex social dynamics on the ground is easier said than done, especially in a sector as male-dominated as the extractive industry. But at a global level, there is something else multinationals can do: promote a more gender-diverse corporate culture. 

"At all levels, when you look at women in the extractives in other parts of the world, we are the minority by far," says Vézina. Indeed, men have far better access to job opportunities with major resource projects. According to a recent study by PwC, women make up just five per cent of the boards of directors at the 500 largest mining companies.

Enabling women to reap the benefits of extractive industry projects in a meaningful way will require tackling their under-representation in national and international leadership roles, adds Vézina. But the companies could benefit, too. "Women bring a completely different perspective to the table."

For the sake of its commercial success, the extractive industry will eventually have to invest more in the welfare of women—and mine their talents.