ABSTRACT

            The purpose of this dissertation entitled: “Women’s right to work under Cameroonian labour law”, was to examine whether the protection given to women under the labour code is effective to guarantee their non-discriminatory requirement alongside men and safeguard their procreation rights. The answer to this question was based on the hypothesis that the protection of women’s right is not effective. Through the study it has been discovered that in order to maintain equality in employment, women are given the same rights as men to conclude, execute and terminate a contract of employment. The labour code equally protects the procreation right of women by providing for at least a 14 weeks maternity leave, a least one hour per day nursing break all calculated and paid, and the right to be reintegrated into the same job or similar job with the same pay after maternity leave. It is also been discovered that the prohibition of night work for women as well as some activities prohibited for women and the protection of women through fundamental rights constitute a violation to their rights. This is because it makes the women unattractive in the eyes of the employer for recruitment. Also the lack of specific sanction for the repression of abuses of women rights is yet a violation of women rights under the labour code. To this effect, we recommend that the labour code should be amended so that prohibition of night work and some activities for women should be deleted and specific sanctions included for the repression of abuse on women’s right. Also the labour code should take in to consideration certain psychological aspects of the women like menstruation and menopause and make provision for leave due to menstruation and menopause. Lastly the legislators should consider establishing a joint recruitment scheme establishing a quota for the recruitment of women in public and private enterprises.   

GENERAL INTRODUCTION

      BACKGROUND, CONTEXT AND JUSTIFICATION OF STUDY

The issue of women’s right is not only that of national but of international concern. Throughout history, women worldwide have been subjected to domination, abandonment, mutilation, discrimination to name but a few examples from the litany of women’s right. Views about the status and rights of women have considerable influence on the way in which they are treated, and therefore determine to some extent what is considered to be abusive. However, with the coming of the struggle for the promotion and protection of Human Rights, things have been put into proper perspective.

Following World War II, Eleanor Roosevelt of the United States, P. C. Chang of China, Charles H. Malis of Lebanon, and Rene Cassin of France, with contributions from many others, drafted the Universal Declaration of Human Rights (UDHR). In the aftermath of the Holocaust, it was their hope to bring an end to the human history of world war. In 1948, the UDHR was adopted by the United Nations General Assembly. This declaration represents the first global expression of rights to which all human beings are inherently entitled. It consists of thirty articles which have been elaborated in subsequent international treaties,^[1] regional human rights instruments,^[2] national constitutions, and other laws.

International human rights law lays down obligations which States are bound to respect. By becoming parties to international treaties, States assume obligations and duties under international law to respect, to protect and to fulfill human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfill means that States must take positive action to facilitate the enjoyment of basic human rights.^[3]

These obligations of States are not mutually exclusive. Where one is found, the others are present. Thus the State has the duty to protect its citizens against abuse, especially those that are vulnerable.^[4]There are particular groups who, for various reasons, are weak and vulnerable or have traditionally been victims of violations and consequently require special protection for the equal and effective enjoyment of their human rights. Women are one of such vulnerable groups.

The founding document of the UN, The UN Charter provides in its preamble that there is a need “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women.”^[5] The Universal Declaration of Human Rights (UDHR) which followed and which forms the basis of bills of rights of many national constitutions was equally clear providing in article 1 that, “All human beings are born free and equal in dignity and rights”. Article 2 speaks of the entitlement of all persons to the enjoyment of the rights contained within the Declaration “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” The two instruments coming out of the UDHR, the International Covenant on Civil and Political Rights, 1966 (ICCPR) and the International Covenant on Economic Social and Cultural Rights, 1966 (ICESCR) also so provide.^[6] This International Bill of Rights guarantees equal protection before the law to all. Instruments tackling specific elements of discrimination include the 1967 Declaration on the Elimination of All Forms of Discrimination against Women^[7], which predated to the Women’s Convention otherwise known as Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)^[8]. Other international instruments including, the Convention on the Rights of the Child, 1989^[9], the Migrant Workers Convention, 1990^[10] and the Convention on the Rights of Persons with Disabilities, 2006 (Disabilities Rights Convention) ^[11]provide for non-discrimination and equality before the law. The latter goes further making special provision for the rights of disabled women^[12].

The ratification by most States of at least one of the above listed human rights instruments, suggests that there is universal acceptance of the norm of equality. However, the reality is somewhat different. The principle of non-discrimination is often not respected, frequently in the area of women’s rights.^[13] The clearest manifestation of this is in the continued existence of laws that directly discriminate against women, despite clear international legal obligations requiring States to abolish, amend or repeal laws that discriminate against women on the basis of sex.^[14] This is compounded by lack of implementation of laws which promote women’s equality and the absence of institutional mechanisms to promote the human rights of women. As far as the history of women’s rights is concerned, women (and some men) have asserted women’s equality and the rights of women since ancient times, but without much success until the 19th and 20th century women’s rights movement.

Cameroon is a developing country that has set forth roadmaps to carry it in to emergence in 2035. This will depend on how the rights to work of Cameroonian women are protected in order to improve on their working conditions and maintain their procreation right so that with ease and much guarantee, its attainment of emergence will be ascertained and assured. On this score, there are a plethora of legal instruments that have been placed to give Cameroonian women the right to work under desirable conditions of international repute so as to boost productivity and the very welfare of female workers. That is why it is pertinent for us to analyse these legal instruments.

The primary legal documents guaranteeing women rights to work is the Constitution of 1996[15]. The Preamble of the Constitution as read with its Section 65 that makes it an integral part of the Constitution broadly affirms the commitment of the state of Cameroon not only to protect and guarantee the rights of women but more importantly demonstrates its willingness to sign, promulgate and apply laws on the rights and freedom of persons. In these rights and freedom are incorporated women rights to work, maternity leave, and leaves. We glean from the Preamble of the Constitution that every person shall have the right and obligation to work and the free choice of employment. Even married women today may exercise a trade different from that of their husbands[16] and they may open a separate account in their own name and make deposits or withdrawal as they see fit[17].

More still the Preamble of the Constitution in guaranteeing women rights to work, in explicit terms staunchly affirms a person’s right to join a trade union, right to strike, right to participate in the running of a business, the right to fair working condition, the right to fair remuneration, the right to social security and the freedom from slavery and force labour[18]. A female worker in Cameroon has a duty to work and the right to obtain employment. She cannot suffer loss in her work by reason of her origins, opinions or beliefs. She can defend her rights and interest through trade union activities and can belong to a trade union of her choice. She can also exercise her right to strike[19] within the framework of the Labour Code[20].

Furthermore, in the very Preamble of the 1996 Constitution, there is an incisive provision of law that “all persons shall have equal rights and obligations, the state shall provide its entire citizen with the conditions necessary for their development.  The equal rights and obligations so provided in the Preamble of the Constitution and the needs to provide safety conditions necessary for the development of every citizen, whether men or women to improve their productive capacity and skill.”

It is therefore true that the Preamble of the Constitution has provided useful legal provisions for the protection and guarantee of women rights to work, but those protections are fixed by laws. This is where the snag is. It means that these generalized rights to work are not self-operative as they are constrained by the rules and regulations in force. There is the Cameroonian Labour Code which is an umbrella code governing workers of private enterprises, but within the enterprises are internal rules and regulation governing workers. These internal rules and regulation somehow depart from the prescriptions of the Labour Code. However, the fact that these women rights have been recognized and stated in the Constitution is important mile-stone toward protecting and safeguarding the rights of women in Cameroon.

The corpus of employment legislation in Cameroon is contained in the 1992 Labour Code[21], which attempts to harmonize, recognize and consolidate the plethora and fragmentary pieces of legislation on Labour matters which existed in the country before reunification[22]of the French speaking and English speaking Cameroons[23]. Today, close to 24 years after the promulgation of the 1992 Labour Code of Cameroon[24], question arises whether the rights to work of women is protected in the Code.

We might all admit that the right to work is indeed, a basic right of each citizen[25], Section 2(1) of the Labour Code directs the state to make every effort to help citizens to find and secure their employment.  The Labour Code goes further to make a clear distinction between a workers protected and governed by it and a non-worker. Even though this distinction may seem both simple and unnecessary, it is in fact fundamental to an understanding of the violation of the right of women workers in Cameroon. Difficulties arise on the one hand because many people work for others without being their employees, and on the other hand because if the employment relationship does not exist, a mass of legal and financial responsibilities follow which either do not apply at all in other working relationships or, as the case may be, apply  to a much lesser extent[26].

Furthermore, the question is of vital importance because the Labour Code does not govern all classes of workers, and a worker not covered by the Labour Code cannot evoke the provisions of the Code. To this effect, Section 1(3) of the Labour Code provides as follows:

 This law shall not apply to staff governed by;

– the General Rules and Regulations of the Public Service;

-the Rules and Regulations Governing the Judicial and Legal Service;

-the Special Rules and Regulations of the National Security;

-the Special Rules and Regulations of Prison Administration Civil Servants;

-the Special Provisions Applicable to Auxiliary staff.

It follows that a female worker who is governed by any provisions other than those of the Labour Code necessarily falls outside the sphere of the latter. Thus in Regional Head of P&T Buea V. Samuel Ndima[27]; a daily rated staff of the Ministry of Post and Telecommunication was held to be unaffected by the provisions of Section 1(3) of the Labour Code[28]

Another point which is vital for consideration is that of distinguishing a worker from an independent contractor. When the term employee is used, it relates to the existence of a contract of employment or a contract of service; as distinct from a contract for services, under which a person (referred to as an “independent contractor”) performs services under a contract for another person[29].

There are three main reasons why this distinction is necessary in Labour Law. First persons who are not employees are not covered by the provisions of the Labour Code and cannot be heard to say their contracts have been terminated wrongfully. Second, the concept of vicarious liability[30] normally extends only to the employer/employee relationship[31], in other words an employer is responsible for the legal consequences of acts done by his employee in the course of employment[32]. The third reason for this distinction is that there are certain rights and obligations which are implied in the contract of employment, but which do not extend to the relationship between an independent contractor and the person for whom he is working[33].

The term worker has been defined in Section 1(2) of the Labour Code as “any person, irrespective of sex or nationality, who has undertaken to place his services in return for remuneration, under the direction and control of another person, whether an individual or a public corporation considered as the employer” This definition has given rise to some controversy as to what conditions a person must fulfill in order to qualify as a worker of another person[34]. Alternatively, what requirements underlie the employer/employee relationship? It is, however, submitted that the worker must be subordinate to the direction and control of the employer[35]. In Secretary of State West Cameroon Development Agency V. M.N. Wole[36], Davish J as he then was had this to say:

I am of the opinion that the Labour Court was wrong in asserting that the respondent was an employee of the appellants. In as much as not only his appointment but also his salary and other emoluments and termination of his appointment were at the discretion of the agency as envisaged by Sub (2) of Section 1 of the Labour Code. It is true that the respondent served the agency and received his remuneration for services rendered to the agency in so far as the execution of the duties assigned to him were concerned; but I am of the opinion that these alone do not constitute him as an employee of the agency within the definition of the Sub-Section of the Labour Code.

            From the foregoing, it follows that the requirement that the worker must be under the direction and control of the employer is not conclusive. Indeed, a person is not a worker simply because he receives and obeys orders, or is paid for his or her work[37]. There must in addition, be complete subordination on the part of the worker. The purported employer must not only profess to direct and control the activity of the worker; he must also be responsible for the employment and termination of the contract of employment[38].

Once it is certain that a woman is a worker, employers and employees have certain reciprocal duties in their contractual relationship[39]. On the one hand all employees owe their employer a duty to work in accordance with the lawful orders, to co-operate with their employer, to serve the employer faithfully and honestly and to exercise skill and care in the performance of work[40].

In turn, employers have an obligation to pay wages for work performed or for which the employee is ready to perform, to take reasonable care for the safety of the employee, to provide work and to provide safe work, to act in good faith towards the employee and not to act in such a way as to undermine the trust and confidence of the employment relationship[41] .

In all, the express terms of the contract of employment will govern any aspect of the relationship between the parties which falls within those terms. But in practice, many aspects of the relationship will be left to implied terms which the parties must have intended to be incorporated in to the contract[42]. The rights and duties of the respective parties must have intended to be often left to be governed by a set of normally implied terms. The rights of women workers protected by the Labour Code are found under part v (chapter two and three) of the Code[43].   

The Constitution is the highest law of the land. By virtue of Article 45 of the 1996 Constitution of Cameroon any duly ratified convention takes priority over national laws. Therefore Cameroon as a member of the International Labour organization is bind by duly ratified conventions of this organization. International Labour Conventions provide for the measures protecting women workers and also provide for equal treatment of male and female workers.

DEFINITION OF KEY WORDS

            The continuity of our work depends on the senses that we give to different concepts of our topic. This is why it is necessary to define the terms, women, rights, women’s right and right to work.

                                                                          WOMEN

            Woman is defined by Article 1 of Convention No. 183[44] as any female person without discrimination whatever.

          “Women” means persons of female gender, including girls.^[45]

All the females of the human species and all such females who have arrived at the age of puberty^[46].The sex which conceives and gives birth to young .Also a member of such sex. The term in generic, but may have the specific meaning of “woman”.

          A woman is a female human .the term woman is usually reserved for an adult, with the term girl being the usual term for a female child or adolescent. The term woman is also sometimes used to identify a female human, regardless of age, as in phrase such as “women’s right”.” woman” may also refer to person’s gender identity. Women with typical genetic development are usually capable of giving birth from puberty until menopause.

RIGHTS

Rights is also defined by the Black’s Law Dictionary[47] as that which is proper under the law, morality or ethics, or something that is due to a person by just claim, legal guarantee of ,moral principles . Rights are conditions that cannot be infringed upon or taken away by others, even by the government or the state. Every individual has rights and it is the duty of the government and legal system to protect and uphold these rights. The idea of rights is not new, in fact it dates back to the 1600s. English philosopher John Locke was one of the first to suggest that all people were born with ‘natural rights’.

WOMEN’S RIGHTS

          As a noun, they are rights that promote a position of legal and social equality of women with men. According to the legal definition it is “the effort to secure equal rights for women and to remove gender discrimination from laws, institutions, and behavioral patterns”^[48].

          Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, Non-self-governing or under any other limitation of sovereignty.^[49]          

The term women’s right refer to the freedoms of inherently possessed by women and girls of all ages, which may be institutionalized ,ignored  or suppressed by law ,custom and behavior in a particular society.^[50] Therefor Women’s rights are the rights and entitlements claimed for women and girls of many societies worldwide. In some places, these rights are institutionalized or supported by law, local custom, and behavior, whereas in others they may be ignored or suppressed.

RIGHT TO WORK

           Everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment (Article 23)^[51].

          The preamble to Cameroon’s Constitution proclaims that every person has the right and the duty to work. Similarly, the Labor Code recognizes the right of every citizen to work and states that the state should do everything possible to assist a citizen in finding employment and keeping it once he/she has obtained it^[52].It adds that work is a national duty for every adult, able-bodied citizen.

[1]To which Cameroon is a signatory. For example, the Convention on the elimination of all forms of discrimination against women.

[2]For example, the African Charter on human and peoples’ right (ACHPR).

[3]Dr. H.O. AGARWAL, (2007), International Law and Human Rights. Central Law Publications. 14^th Edition. P.707.

[4]Vulnerable refers to the harsh reality that these groups are more likely to encounter discrimination or other human rights violations than others.

[5] See also article1 (2) and 55(c) of the united nation charter.

[6] The international covenant on civil and political right 1966(ICCPR), 999UNTS171, article2, 3 and 26, the international covenant economic, social and cultural rights, 1966(IESCR, 993 UNTS 3, articles 2 and 3.

[7] UN declaration on the elimination of all forms of discrimination against women, GA Res 2263(xx11) of 7 November 1967.

[8] Convention on the elimination of all form of discrimination against women 1979, 34 UN GAOR SUPP NO 46, 193, UN DOC A34/46.

[9]Convention on the rights of the child, adopted by GA Resolution 44/25 of 20 November 1989.

[10] International Convention on the Protection of all Migrant Workers and Members of their Families, A/RES/45/158, art. 7.

[11]Convention on the Rights of Persons with Disabilities, A/61/611, preamble paras. a, h and p and art. 2, 3 (b) and (g) and 5.

12Convention on the rights of persons with disabilities article 6.

13 D. Otto “‘Gender Comment’: Why Does the UN Committee on Economic, Social and Cultural Rights Need a General Comment on Women?” 14 (2002) Canadian Journal of Women’s Law 1.

[14] CEDAW, art. 2.

[15] Law number 96/018 of 18 January 1996 on the Constitution of Cameroon as amended in March 2008, herein after referred to as the constitution.

[16] See Section 74(1) of the Civil Status Registration Ordinance No. 81-02 of 29 June 1981.

[17] Ibid. Section 75(1)

[18] See generally the Preamble of the Constitution; see also Articles 3 to 29 of the Universal Declaration of Human Rights which set out a catalogue of human rights and fundamental freedom. In fact the Preamble of the Constitution affirms the attachment ;of the Cameroonian people to the <<…fundamental freedoms enshrined in the Universal Declaration of Human Rights and the African Charter on Human and Peoples’ Rights>>

[19] Section 157(4) of the Labour Code provides that <<a strike shall be collective or concerted refusal by all or part of the workers of an establishment to comply with the normal labour rules, in order to bring the employer to meet their demands or claims.>>

[20] See generally Section 157 of the Labour Code.

[21] Cameroon has experienced three labour Code since political independence and reunification. The first Labour Code was promulgated in 1967 as Law No 67LF-6 of 1967, the second in 1974 as Law No 74-14 of 27 November 1974, and the third in 1992 as Law No 92-007 of 14 August 1992.

[22] On 11 February, 1961, in a UN conducted plebiscite, Britain Southern Cameroon’s voted in favour of accession to independence by reunifying with the Republic of Cameroon.

[23] See generally CARLSON ANYANCWE, the Cameroon Judicial System.CEPER, Yaounde, 1987.

[24] Herein after variously referred to as <<the Code>> or the <<Labour Code>>

[25] See Article 5 of the Universal Declaration of Human Rights, which provide that <<the right to work shall be recognized as a basic right of each citizen >>. So far as the Common Law is concerned, the cases of Nagle v.Fieder(1966) 1 ALL ER 689, and Langston V.A.U.E.W.(1974)1ALL ER 980 suggest, that there is a <<right to work>> or more narrowly that opportunity for employment should not be subject to unreasonable restriction such as sex discrimination or arbitrary exercise of union power- or perhaps age or politics or religion, or other such cases –even where there are not specifically regulated by statute.

[26] See WHINCUP M. Modern Employment Law: A Guide to Job Security and Safety, 8^th ed., Butterwoths, London, 1995, p.18.

[27] Civil Appeal No CASWP/14/76 CA (Unreported).

[28] At the time the case was heard the governing provision was Section 1 (3) of the 1974 Labour Code.  Section 1(3) is today contained in Section 1(2) of the Labour Code.

[29] See WHINCUP, M. Supra, note 10, at p.20.

[30] Vicarious liability generally arises from a contract of service (servant) but not from a contract for services (independent contractor). For more on this concept of vicarious liability, see ROGERSM W.V.H. Winfield and Jolowicz on Tort. 11ed. Sweet and Maxwell, London, 1976, at pp 550-579.

[31] See Ready-Mixed Concrete (South-East) Ltd. V. Minister of Pensions and National Insurance (1968) 2 Q.B. 497; see also Hitchcock V. Post Office (1980) 1 C. R. 100,108 H.

[32] See Section 173 of the Labour Code which provides that <<the head of an enterprise shall bear civil liability for the conviction of his agent or official in charge. >>

[33] See GUEST, A.G., Chitty on Contracts (Specific Contracts), 26th ed. Sweet and Maxwell, London, 1989, para 3853 at p.721.

[34] See generally, SIMON TABE TABE, <<Employers Breach of Contracts, Redundancy, Wrongful Dismissal and Notice: the Case of Trapp Groupementd’Entreprise V. CheGuza Cletus. >> Appeal No BCA/2.L/98 (Unreported), Juris Periodique, No 44, 2000, pp. 37-42.

[35] See ANDERMAN S.D., <<Labour Law: Management Decisions and Workers’ Right, >> 2^nd ed., Butterworths, London 1993, at p. 35.

[36] Civil Appeal No CASWP/17/76 (Unreported).

[37] WHINCUP, supra, note 10, at p. 18.

[38] Ibid.

[39] ANDERMAN, S.D. supra note 19 at p. 35.

[40] Ibid.

[41] Ibid.

[42]GUEST A.G. Supra, note 17 at p.750.

[43] This shall be examined in detail in Chapter two of this dissertation

[44] ILO Convention No.  183 on Maternity Protection 2000.

[45] Article 1,k of protocol to the African charter on human and peoples’ rights on the right of women in Africa.

[46] Black’s law dictionary.

[47]bLack’s law opt.cit 1436.

[48]Legal-dictionary. The free dictionary .com.

[49] Article 2of the UDHR.

[50]www.m.selfgrowth.com>…>women’s issues.

[51] Universal declaration of human right.

[52]  Act No. 92/007 of August 14,192 on the Labor Code, Art. 2.