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The Gender Bench Book

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The Gender Bench Book THE GENDER BENCH BOOK WOMEN’S ACCESS TO JUSTICE IN UGANDA A PUBLICATION OF THE JUDICIARY FIRST EDITION SEPTEMBER 2016 Published by The Judiciary with support from the United Nations Entity for Gender Equality and the Empowerment of Women (UN Women) and funded by the Embassy of Sweden. ii The Gender Bench Book 2016 Foreword Access to justice for women is a critical component of delivery of justice globally and at the national level. In Uganda, the Justice Law and Order Sector (JLOS) conducted an audit in May 2011 which revealed, among other factors, the limited capacity of the judiciary to deliver gender-sensitive justice to the general population of Uganda, and more specifically to women. Although a number of training sessions on gender justice have been conducted for judicial officers, some of the court procedures and judgments clearly demonstrate their inability to translate the gender training into concrete benefits for women. The major reason identified for this gap is the lack of tools for thejudiciary to make court processes and judgments more gender-sensitive. In the JLOS work plan, under the Strategic Investment Plan (SIP) III (2011 - 2016), one of the key strategies identified for addressing this gender capacity gap in the judiciary was the development of gender bench briefs for judicial officers to use and refer to in adjudication of cases. TheGender Bench Book presents judicial officers with local and international best practices, including recommendations from treaty bodies such as the Committee on the Elimination of Discrimination against Women. It offers guidelines for use by court officials when determining cases wherewomen’s rights are involved. It will also assist judicial officers in addressing procedural issues that impedeaccess to justice. It is against this background that UN Women has supported the research and publication of this Gender Bench Book, to enhance the gender-responsiveness of judicial officers, and ensure that judgments in Uganda are increasingly gender-sensitive. We are grateful to UN Women and the Embassy of Sweden for this valuable support. We hope that this Gender Bench Book will enhance women’s access to justice, and particularly contribute to the effective implementation and enforcement of women’s rights in Uganda. Hon. Justice Bart M. Katureebe CHIEF JUSTICE OF UGANDA The Gender Bench Book 2016 iii Foreword Rigorous international standards have been developed to ensure that women access substantive justice. One of the core treaties to establish these standards is the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). CEDAW and other treaties, including the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), seek to address pervasive social, cultural and economic discrimination against women and declare that States must act to eliminate violations of women’s rights whether by private persons, groups or organizations. Such treaties map out a broad range of actions that States must take to respect, protect and fulfill those rights. The CEDAW Committee’s General Recommendation No. 33 on Women’s Access to Justice, adopted in July 2015, stresses the importance of women’s access to justice in diverse legal systems and in all areas of law for all women. It encompasses all justice settings (formal, informal or semi-formal), sources of law (common law, civil law, religious law, customary law or mixed legal systems), and the full range of legal domains (criminal, civil, family, administrative and constitutional). The General Recommendation situates the obligations of States parties to ensure women have access to justice, within the broader context of persistent obstacles and restrictions that prevent women from realizing their right of access to justice on the basis of equality. One such obstacle, for example, is Violence Against Women, which severely impedes the empowerment of women in Uganda. The Uganda Demographic and Health Survey (UDHS, 2011) shows that 56 per cent of women aged 15 - 49 reported having experienced physical violence at least once since the age of 15. Wife beating is widely accepted with 58 per cent of women and 44 per cent of men believing that it is justified for a man to beat his wife under certain circumstances. Further, it is estimated that only two in ten Ugandan women report violence or seek help. And even when cases are reported, conviction rates for perpetrators stand at an alarming 6.6 per cent of prosecuted cases. To address gender gaps in access to justice identified in the JLOS SIP III (2011 - 2016), UN Women, with funding from the Embassy of Sweden, supported the judiciary in Uganda to develop the Gender Bench Book on women’s access to justice. This book is intended to serve as a reference guide for judicial officers to ensure that judgments in Uganda are increasingly gender-sensitive, protect women’s and girls’ human rights, and encourage women to seek justice. It is my hope that all actors across the justice, law and order sector will find this Gender Bench Book useful, and that it will contribute to creating a gender-sensitive justice system that protects the human rights of all women and girls. Representative, UN Women Hodan Addou iv The Gender Bench Book 2016 Acknowledgements The development of this Gender Bench Book was a participatory process involving national and international Gender and Women’s human rights experts, and judicial actors at various levels of the justice system in Uganda. UN Women acknowledges with gratitude:- The Judiciary of Uganda Hon. Justice Bart M. Katureebe: Chief Justice of Uganda Hon. Lady Justice Stella Arach Amoko: Supreme Court of Uganda Hon. Justice David K. Wangutusi: High Court of Uganda Hon. Lady Justice Flavia Ssenoga Anglin: High Court of Uganda The Judicial Studies Institute Hon. Justice Henry Peter Adonyo: Executive Director, Judicial Studies Institute His Worship Phillip Odoki: The Registrar Judicial Studies Institute Research Team Hon. Justice Batema N.D.A: Lead Consultant Ms. Fiona Nakibuuka: Associate Consultant Counsel Solomon Baligeya: Associate Consultant Mr. Magwiri Deogratious Mr. Sam Bakulama With Support from:- Ms. Betty Nalubwama, wife to the Lead Consultant Counsel Ronald Willis Kasiisa Afande Jonathan Batambuze Afande Dickson Atukwase Kimuli Joseph and Michael Rubanjwa: Drivers Technical Reviewers: Prof. Sylvia Tamale: Professor, Department of Law and Jurisprudence, School of Law, Makerere University United Nations System and Beyond We acknowledge and thank colleagues from across the United Nations system and beyond for their comments and contributions to this book:- Evelyn Kamau: Office of the High Commissioner for Human Rights Agnes Gillian Ocitti: Royal Danish Embassy in Uganda Laura Fragiacomo: UNICEF The Gender Bench Book 2016 v UN Women Headquarters and Regional Staff Written comments and contributions from:- Nahla Valji, Francis Onditi, Beatrice Duncan, Janette Amer, Alison Davidian, Adjaratou Fatou Ndiaye, Jebbeh Forster, Marguerite Garling, Norul Rashid, Funmi Balogun, Heran Ayele, Hilina Berhanu Degefa, Carolin Schleker UN Women Uganda Country Staff Hodan Addou, Anna Mutavati, Susan A. Oregede, Amel Ferchichi, Agripinner Nandhego, Heleen Annemans, Joyce Palaki Atim, Jordan James Colon UN Women Partners Irene Ovonji-Odida, Lillian Adriko, Algresia Ogojo: Federation of Uganda Women Lawyers Tina Musuya: Center for Domestic Violence Prevention Samuel Olumo: Uganda Law Society Editors Ms. Barbara Hall Ms. Leigh Ann Pasqual Financial Support UN Women would like to thank the Embassy of Sweden in Uganda for their generous financial support towards this publication. vi The Gender Bench Book 2016 The Gender Bench Book 2016 vii viii The Gender Bench Book 2016 The Gender Bench Book 2016 ix x The Gender Bench Book 2016 Background and Justification International human rights standards are set within the provisions of international treaties, supplemented by the jurisprudence found in the general recommendations and concluding observations provided by the treaty bodies responsible for monitoring the implementation of those treaties. In its 2010 Concluding Observations, the Committee on the Elimination of Discrimination against Women (CEDAW Committee) noted with concern that the mechanisms to enforce Article 32(2) of the Ugandan Constitution which prohibits “laws, cultures, customs and traditions which are against the dignity, welfare or interest of women,” were not widely known and were inaccessible to the majority of women in Uganda. It urged the Government of Uganda to “strengthen its complaints system to ensure that women have effective access to justice” and “to put in place without delay a comprehensive strategy.... to modify or eliminate traditional practices and stereotypes that discriminate against women, in conformity with Articles 2(f) and 5(a) of the Convention”.1 The 2015 National Service Delivery Survey Report indicated that approximately three out of four households that used the various Justice Law and Order Sector (JLOS) institutions for redress were satisfied with the services received (Uganda Bureau of Statistics (UBOS), 2016b). Unfortunately, the data in the report was not segregated by sex, making it difficult to gauge gender-related inequalities. However, indicators of gender disparities in access to justice can be gleaned from other official reports such as the National Population and Housing Census Report of 2014, which revealed for instance, that literacy among Ugandan women is 68 per cent
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