ACCESSING JUSTICE: MODELS, STRATEGIES AND BEST PRACTICES ON WOMEN’S EMPOWERMENT FORWORD
The International Development Law Organization (IDLO) is an intergovernmental organization devoted to empowering people and enabling governments to reform laws and strengthen institutions to promote peace, justice, sustainable development and economic opportunity. Front cover image: UN Photo / Martine Perret
02 FOREWORD
iscrimination against women is often justified in the name of culture. For 27 years, I have lent my voice to campaigns by women’s rights advocates, lawyers and other activists to end the unequal legal Dposition of women and girls and to ban corporal punishments such as stoning, flogging or cutting off hands. I have learnt from my work that to implement women’s rights on the ground we need to frame women’s demands in a language that is culturally appropriate and culturally persuasive.
The present study highlights the critical role legal empowerment strategies SHIRIN EBADI can play in changing and challenging oppressive gender relations that are Human Rights Lawyer justified under the name of culture. By showcasing an impressive range of Nobel Peace Laureate legal empowerment approaches in diverse geographical and cultural settings, the study indicates the value of empowering women, through efforts aimed at legal education, legal training, the provision of legal services and the creation of a space for women to question and negotiate discriminatory ‘cultural’ norms.
The initiatives presented in the study indicate that legal empowerment strategies can slowly pay long term dividends, by allowing women to claim power from those who rule in their name, rather than leaving reforms to the whims of the state and community decision-makers, whose interests often lie in the preservation of the status quo. The key message of the study is that by empowering women to claim their rights, women are better equipped to bring about change in their communities. I am confident that when such projects are pursued in conjunction with legal and institutional reforms, we will finally make progress in making women’s rights a lived reality.
›THE KEY MESSAGE OF THE STUDY IS THAT BY EMPOWERING WOMEN TO CLAIM THEIR RIGHTS, WOMEN ARE BETTER EQUIPPED TO BRING ABOUT CHANGE IN THEIR COMMUNITIES ‹
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ACCESSING JUSTICE / 2013 CONTENT TABLE OF CONTENTS
› EXECUTIVE SUMMARY 07 LEARNING FROM PRACTICE: › LESSONS LEARNED 08 Eight successful ways of empowering
› POLICY RECOMMENDATIONS 09 women to access justice
› Gender equality on the horizon: The case 26 ACCESSING JUSTICE IN of Uukwambi Traditional Authority in Namibia DIVERSE LEGAL SYSTEMS: › Bush justice in Bougainville: Mediating change 34 A complex reality for women by challenging the custodianship of custom › Where do women go to get justice? 11 › Engaging with customary law to create scope 40 for realizing women’s formally protected land › Can empowerment strategies help? 13 rights in Rwanda › Do legal empowerment strategies 14 › Two faces of change: the need for a 46 work in informal justice systems? bi-directional approach to improve women’s What do we mean by informal 14 land rights in plural legal systems justice system? › Legal empowerment of unwed mothers: 52 Why do women rely so much 15 experiences of Moroccan NGOs on informal justice system? › The trafficking of girls in West Bengal 57 17 What are the challenges of informal systems › Using legal empowerment to address 62 for women’s access to justice? violence against women in Afghanistan Can engagement with informal systems › Negotiating land tenure: women, men and 67 enhance women’s access to justice? 19 the transformation of land tenure in the Solomon Islands › SUMMARY OF CASE STUDIES 71
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EXECUTIVE SUMMARY, LESSONS LEARNED AND POLICY RECOMMENDATIONS
6 IDLO
EXECUTIVE SUMMARY
he law is an essential tool for using the law to enable disadvantaged advancing women’s and girls’ groups to access justice and realize rights and equality. A robust basic rights. They include legal Tand effective legal system education; legal aid services; based on the rule of law is central to support for non-discriminatory dispute- assisting women to become equal resolution fora to complement or partners in decision-making and supplement informal systems; training development. Over the last couple of of paralegals; and rights awareness. decades, the international community has invested substantially in programs In considering whether such aimed at strengthening the rule of law approaches can improve the quality in developing countries. Despite this of justice women receive, Accessing investment, the rule of law continues Justice brings together a number to mean very little for the vast majority of IDLO-sponsored case studies in of women and girls. Afghanistan, India, Namibia, Rwanda,
Mozambique, Tanzania, Morocco, Papua Image: Martin Sojka IDLO’s study Accessing Justice: New Guinea and the Solomon Islands. Models, Strategies and Best Practices These highlight a variety of lessons on Women’s Empowerment explores for development practitioners, both in some of the challenges and solutions terms of engagement with the informal for women’s access to justice in diverse legal sector and, more generally, for legal systems. It shows that women the use of legal empowerment and face structural and cultural barriers top-down / bottom-up strategies. In an to accessing justice – insufficient appropriate context, carefully designed knowledge of rights and remedies, legal empowerment strategies may illiteracy or poor literacy, and lack constitute a valuable contribution to of resources or time to participate in improving women’s access to justice. justice processes. This is all the more so as women usually have intensive family The case studies also confirm that responsibilities. Even where women can programs designed to address access the formal justice sector, the women’s rights in informal justice outcomes of the process often fall far systems remain a highly sensitive short of those envisaged by international issue. These programs require thorough standards, particularly with regard to knowledge of the social, economic, and property rights, inheritance, divorce and political context in which the informal child custody, and spousal abuse. system is operating. Moreover, legal ›THE RULE OF LAW MEANS empowerment approaches in both the Focusing on legal empowerment as a formal and informal justice sectors are LITTLE TO MOST WOMEN way to improve both access to justice likely to be more sustainable when a) AND GIRLS: ACCESS and the quality of justice women receive, they are locally owned; and b) when they the study presents strategies and best are coupled with top-down reforms to TO JUSTICE DEMANDS practices in both formal and informal ensure domestic laws and regulations justice systems. Legal empowerment are in line with international legal KNOWLEDGE, LITERACY, approaches share one core concept: standards on gender equality. MONEY AND TIME‹
1Hereinafter referred to as Accessing Justice.
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LESSONS LEARNED
Although small scale and taking place in different contexts, the case studies featured in Accessing Justice provide some important lessons as to how legal empowerment approaches can be used effectively to enhance women’s access to justice in diverse legal systems:
1. Legal empowerment strategies work in informal justice settings capacity to influence and guide the can be successfully used to improve because the customary authority of behavioral norms and social interaction women’s access to justice in both male leaders is generally connected between men and women. A well- formal and informal systems to their ability to reflect the values functioning and non-discriminatory One of the key problems for the and interests of the community.3 Thus, legal system can also serve as an achievement of gender equality lies while customary male leaders often accountability mechanism to ensure in the inability of many women to use benefit from the status quo and resist the compliance of informal practices existing legal standards to realize their positive change for women, they may with basic human rights standards and rights. Legal empowerment strategies, also have incentives to respond to to prevent power abuses, while at the through legal literacy programs, legal community expectations. In the same same time enhancing the predictability aid or alternative dispute resolution way, bottom-up legal empowerment of informal decisions. mechanisms, can help create a ‘culture approaches targeting women can of justice’ among women and ensure pressure community leaders to Grassroots efforts to empower women that principles of equality and non- reform discriminatory practices. are therefore more effective when discrimination are not only enshrined in When women are informed of their coupled with ‘top-down’ reforms law, but also translated into practice. rights and encouraged to discuss or aimed to ensure that justice systems, challenge informal laws and practices, whether formal or informal, are in line Evidence suggests that legal they can put pressure on customary with international laws and standards empowerment approaches to justice systems to better protect pertaining to gender equality. The enhance women’s access to justice basic rights.4 In turn, this can reduce presence of supportive constitutions may work well in a variety of legal power imbalances and elite capture and national laws plays a critical role settings, including informal ones. For and improve the transparency of local in ensuring the effectiveness of legal example, the fluidity and dynamism of government decision-making. empowerment interventions. informal justice systems can open up opportunities for modernization and 2. Legal empowerment strategies are Moreover, legal empowerment projects progressive reforms around women’s most effective where implemented in are most likely to have an impact on rights.2 Where women are provided with conjunction with ‘top-down’ measures women’s access to justice and gender a forum to discuss and (re)interpret and through local partners inequality if they creatively draw on cultural or legal rules, the system may While the state legal system alone local knowledge and practices. This be open to positive transformation, cannot cure gender injustice, it is a key contributes to the legitimacy of the particularly when it is both women avenue for the achievement of gender reforms and ensures their eventual and men who are advocating for a equality. Law has the ability to deter sustainability. reinterpretation of such rules. Legal discriminatory practices against women empowerment approaches may also with the threat of punishment, and the 3. Barriers to women’s access to justice are multidimensional and go beyond legal aspects Political, social, cultural, economic and psychological barriers that obstruct women’s access to justice ›FOR LEGAL EMPOWERMENT TO WORK, and legal empowerment are found at every stage of the ‘justice chain’. The CULTURAL ATTITUDES, ECONOMIC DEPENDENCY case studies clearly indicate that the AND DISCRIMINATION MUST ALSO BE TACKLED‹ disempowerment of women is not
2 E Harper, ‘Engaging with Customary Justice Systems’ in J Ubink (ed), Customary Justice, Perspectives on Legal Empowerment IDLO (2011) 29, 35. 3 T Mennen, ‘Putting Theory into Practice – Improving Customary Justice’ (paper presented at the United States Institute of Peace, George Washington University and World Bank conference on Customary Justice and Legal Pluralism in Post-Conflict and Fragile Societies, Washington, 17-18 November, 2009, 140) cited in Harper, ibid. 4 J Ubink and B van Rooij, ‘Towards Customary Legal Empowerment’, in J Ubink (ed), Customary Justice, Perspectives on Legal Empowerment IDLO (2011) 7, 14-15 (writing in relation to legal empowerment interventions more generally).
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POLICY RECOMMENDATIONS
simply due to lack of knowledge of laws 1. Consider legal empowerment 4. Engage with civil society and and legal procedures, but rather due to approaches as part of the solution to support local ownership to ensure a host of economic, social and cultural advance women’s access to justice. the legitimacy and sustainability of practices that perpetuate inequality in Invest more resources to identify measures targeting women’s access the community and the society at large. and design effective, context-specific to justice. Programs which encourage women to strategies to promote gender equality. object to discriminatory practices are 5. Adopt a multi-disciplinary unlikely to provide meaningful relief 2. Explore the interface of informal and approach to women’s access to unless the broader economic, social formal justice settings. Empowerment justice. Investigate the potential of and security context is addressed. strategies need to be complemented partnerships with non-legal service Research indicates that legal with efforts to address discriminatory providers, in particular those working empowerment projects targeting laws and obstacles to the use of the in the areas of women’s economic women work best when combined formal legal sector. empowerment and income generation, with activities addressing a rule protection from violence and food of law culture, women’s economic 3. Engage with informal justice security. Best practices include legal autonomy and discriminatory attitudes systems, despite the challenges of aid providers teaming up with non-legal within the community. To this extent, program design. Informal justice service providers, such as combining while legal empowerment is not the systems should not be pivoted against with domestic violence counseling in panacea to the wider problems of formal justice systems in a zero- women’s shelters, or bundling legal inequality, discrimination and the sum game. aid delivery with existing services poverty of women, it can make a frequently accessed by women, positive contribution, which, if properly such as midwifery services or integrated with other initiatives, will microcredit schemes. place women on a better trajectory towards effectively addressing discriminatory practices.
4. Legal empowerment programs Image: Benzene Mohamed Aseel Hassam designed to address women’s access to justice need to be context-specific Women’s experiences in the justice system are diverse. There are no ready- made formulas as to how women can be empowered to assert their rights and act as agents of sustainable social change. Rather, a number of questions should be asked: what is the best entry point for women to be empowered to use the legal system to advance their rights? What is the forum in which women’s core concerns are dealt with? Is that system open to reform or would legal empowerment have limited results in that context, due to deeply entrenched gender stereotypes, vested interests in the status quo and power inequities? Each intervention should carefully examine where the opportunities are in a given context, whether that be in the formal or informal justice system and whether that be in targeting procedural or substantive aspects. Ultimately, projects designed to be pragmatic, realistic and reflective of the local context demonstrate a higher rate of success.
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ACCESSING JUSTICE IN DIVERSE LEGAL SYSTEMS: A COMPLEX REALITY FOR WOMEN Accessing Justice seeks to move the discussion forward on how to advance women’s access to justice in pluralist legal settings. Drawing on IDLO’s work, Accessing Justice uses empirical examples to look at ways in which women access justice, the challenges that legal pluralism presents for the realization of women’s rights and the possibilities of engaging with informal systems to overcome their negative aspects. The study proposes that carefully designed legal empowerment approaches may form part of the solution to improve women’s access to justice and the quality of the justice they access. It concludes by emphasizing that rather than viewing the formal and informal justice systems as distinct entry points for intervention, development practitioners should adopt holistic approaches to pluralist legal systems, based on a more nuanced understanding of how women use and experience the justice options available to them in a given context.
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WHERE DO WOMEN GO TO SEEK JUSTICE?
Research suggests that in developing countries, up to 80% of the cases are resolved by informal justice systems, signifying that most women in the developing world access justice in a plural legal environment.
he law is an essential tool for Empowerment of the Poor (CLEP) also advancing women’s rights5 concluded that groups that experience and gender equality. When discrimination and exclusion from Ta society is governed by the the protection of the rule of law are rule of law, with an accessible and more likely to fall victim to a range just legal system, women can thrive, of socio, economic, political and contribute to the system and improve it criminal injustices.10 for future generations.6 The rule of law requires that laws are free from bias Over the last couple of decades, and discrimination7“equally enforced the international community has and independently adjudicated, and invested substantially in programs consistent with international human aimed at strengthening the rule rights norms and standards”.8 As such, of law in developing countries. Yet a robust and effective legal system despite this investment, the rule of based on the rule of law is central to law continues to mean very little for assisting women to become equal the vast majority of women and girls. Image: UN Photo partners in decision-making and Many women are simply unable to development. access and navigate their way through formal legal institutions. This can be Just as a strong legal system can due to structural as well as cultural protect and open up opportunities barriers, including women’s inadequate for women, a justice system that knowledge of rights and remedies, is inaccessible or that contains illiteracy or poor literacy, and lack of discriminatory rules or practices can resources and time to participate in significantly impede the advancement justice processes, especially given the of women’s rights. The United Nations heavy burden of labor that women bear Development Programme (UNDP) for their families.11 These challenges are has highlighted the danger of women even greater for women who are subject being left vulnerable to becoming to multiple forms of discrimination victims of criminal acts, such as fraud, based on factors such as being part ›FOUR OUT OF FIVE theft, sexual or economic exploitation, of indigenous or ethnic minority violence, torture or murder, if they are communities, religious minorities CASES IN DEVELOPING not empowered to benefit from the full or sexual minorities, or for disabled COUNTRIES ARE SOLVED protection of the law.9 The global study women, migrant workers, and women conducted by the Commission on Legal living with HIV/AIDS.12 BY INFORMAL COURTS‹
5 References to women’s rights in this study also refer to girls’ rights. 6 Ban Ki-Moon, UN Women, 2011-2012 Progress of the World’s Women: In Pursuit of Justice (2011) 2. 7 See International Covenant on Civil and Political Rights (ICCPR) opened for signature 19 December 1966, 999 UNTS 171, arts. 2(1), 14 and 26, (entered into force March 23, 1976). 8 UN General Assembly, ‘The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies: Report of the Secretary-General’ (23 August 2004) UN Doc S/2004/616 [6]. 9 United Nations Development Programme (UNDP), Programming for Justice: Access for All - A Practitioner’s Guide to a Human Rights-Based Approach to Access to Justice (2005) 3 (writing in reference to ‘the poor and disadvantaged’ generally). 10 Commission on Legal Empowerment of the Poor (CLEP), Making the Law Work for Everyone: Volume I, Report of the Commission on Legal Empowerment of the Poor (2008). 11 UNDP, Gender Equality and Justice Programming: Equitable Access to Justice for Women (2007) 18. 12 Notably, in the Concluding Observations of many Southeast Asian countries, the Committee on the Elimination of Discrimination against Women (the CEDAW Committee) has consistently recommended that greater attention and resources go towards improving the situation of excluded women and ensuring their voices are heard and their priorities included within mainstream policy decision-making. UNIFEM, Time for Action: Implementing CEDAW in Southeast Asia (2009) 141.
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WHERE DO WOMEN GO TO SEEK JUSTICE? (continued)
When women do manage to access Either by choice or through necessity, the justice sector, they often receive many women, and especially those ›LAWS AND PRACTICES outcomes that are not in line with living in rural environments,17 seek international standards.13 For example, justice through informal systems. Such THAT DISCRIMINATE out of the 112 countries scored in the informal or ‘customary’ justice systems AGAINST WOMEN 2012 Organization for Economic Co- often exist alongside formal systems of ‹ operation and Development (OECD) law. While not gender specific, research REMAIN PREVALENT Social Institutions and Gender Index, suggests that in developing countries, 86 were found to have discriminatory up to 80% of the cases are resolved by laws or practices in relation to property informal justice systems,18 signifying and inheritance.14 The study showed that most women in the developing that on average, women hold only 15 world access justice in a plural legal percent of land titles in countries where environment.19 Evidence indicates that in data is available.15 In family law, women a globalized world, legal pluralism is not continue to have difficulty receiving fair disappearing but, in fact, is becoming treatment in the areas of marriage, more entrenched and complex.20 In divorce and child custody. In addition, plural legal settings the formal justice many justice systems do not treat system “is simply one possible avenue gender-based violence as a criminal in the reality of multiple legal orders”.21 offence, or they consider it to be a family matter for which a fine against the offender will suffice.16
13 International standards of justice and non-discrimination are enshrined in a number of international instruments including arts. 2(1), 3, 14, 15, 16, 17 and 26 of the ICCPR. Specifically relevant is art. 26 of the ICCPR (“all persons are equal before the law and are entitled without any discrimination to equal protection of the law. In this respect, the law shall prohibit discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”). The International Covenant on Economic, Social and Cultural Rights (ICESCR) contains a similar provision under art. 3 (“The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant”) with arts. 2(2), 4 and 5(2) also relevant: ICESCR, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January, 1976). Potentially the most relevant article of the Convention on the Elimination of Discrimination against Women (CEDAW) in this regard is art. 15 (women’s right to equality before the law, with reference to equal rights to conclude contracts, administer properties, to be treated equally in all stages of procedure in courts and tribunals and to have the same rights with regard to the law relating to the movement of persons and the choice of residence and domicile): CEDAW, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981). 14 OECD Development Centre, 2012 Social Institutions and Gender Index: Understanding the Drivers of Gender Inequality (2012) 4,
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CAN EMPOWERMENT STRATEGIES HELP?
Legal empowerment strategies can help create a ‘culture of justice’ among Where legal empowerment projects women and ensure that principles of equality are translated into practice. have been evaluated, the methodology adopted has mostly relied upon omen’s access to justice In the legal empowerment paradigm, relatively easy-to-measure data, such in plural legal settings the critical actors are the people as the number of persons trained or can be challenging. On themselves. The main assumption information resources disseminated Wthe one hand, formal law is that when citizens are better and the number of cases addressed. 27 reforms targeting women are often equipped to protect their own rights, The focus has been on outputs (i.e. inhibited by a number of hurdles it will not only benefit their own the service or product) as opposed to at the implementation stage. On socio-economic position, but also outcomes (the benefits to the target the other hand, statutory attempts contribute to the furtherance of their group as a result of the intervention). undertaken in isolation to improve community’s development. As a process, While this quantitative information is women’s rights through engagement the legal empowerment of women may important in assessing the breadth with informal justice systems have had include initiatives in support of legal of an intervention and the extent to minimal success. The limitations of reforms and services that improve the which it has been able to contribute both approaches are largely based on negotiating position of, for instance, to the objectives of the project, the the same factors, including resource women claiming their right to inherit measurement of legal empowerment constrains within the justice sector, land from their deceased husbands. impacts cannot be based exclusively on cultural biases among those responsible As an outcome, legal empowerment such figures. It must include elements for upholding the law, women’s strengthens women’s income, assets, targeting the quality of justice delivery economic dependence on men, health, physical security and more and the long-term behavioral changes and discriminatory social codes. generally, women’s capacity to act within a given community. independently.24 This may have positive An alternative strategy to strengthen flow-on effects in terms of making The case studies featured below efforts to improve women’s access women agents of good governance represent diverse and innovative legal to justice is to integrate legal at the local level. empowerment approaches undertaken empowerment components into broader at the local, state and national levels to law reform projects aimed at providing Practitioners have come to favor improve women’s access to justice. They women with quality justice. Legal legal empowerment as one of the demonstrate that legal empowerment empowerment programs encompass a key approaches to improving access approaches can be successfully used range of activities sharing a common to justice for disadvantaged groups, to improve women’s access to justice core concept: using the law to empower including women.25 However, the in both the formal and informal justice the disadvantaged within society.22 practical impact of legal empowerment sectors. They also reveal that the Typical legal empowerment activities interventions has rarely been effectiveness of a given project depends include legal education, legal aid comprehensively evaluated. This has upon a variety of situation-specific services, support for non-discriminatory resulted in a burgeoning gap between factors, including, among others, social alternative dispute resolution fora to a wealth of legal empowerment norms, a strong rule of law culture, complement or supplement customary programs being tested in the field and socio-economic realities and national systems, training of paralegals, and the actual assessment of the impact of and geo-politics.28 The cases clearly rights awareness for disadvantaged and such programs,26 which in turns creates indicate a need forpractitioners to marginalized groups.23 Such activities difficulties in understanding whether possess in-depth knowledge of the often focus on the legal obstacles of these interventions are indeed the best target country, its people and the legal most critical importance to strengthen available means for meeting the system (both formal and informal) the livelihoods of the poor, such as access needs of women. so as to ensure that interventions to land, employment and micro-credit. are effective and sustainable.
22 S Golub, ‘What is Legal Empowerment? An Introduction’ in S Golub (ed), Legal Empowerment: Practitioners’ Perspectives IDLO (2010) 9, 12-13. 23 S Golub, Beyond the Rule of Law Orthodoxy: The Legal Empowerment Alternative Carnegie Endowment for International Peace Democracy and Rule of Law Series, Number 41 (October 2003) 26. 24 Golub, ‘What is Legal Empowerment?’ above n 22, 13 (writing specifically in relation to “the disadvantaged”). 25 While legal empowerment has been a strategy used by NGOs for decades, it has received increased attention since the 2008 CLEP report. It has been embraced by the UN Secretary-General in the report ‘Legal Empowerment of the poor and the eradication of poverty’ in 2009. See also M Stephens, ‘The Commission on Legal Empowerment of the Poor: An Opportunity Missed’ (2009) 1 Hague Journal on the Rule of Law 132. 26 Golub, ‘What is Legal Empowerment?’ above n 22, 17. For an analysis of the challenges of assessing the impact of legal empowerment activities, see S Khair, ‘Evaluating Legal Empowerment: Problems of Analysis and Measurement’ (2009) 1 Hague Journal on the Rule of Law 33. 27 E Harper, ‘Introduction’ in E Harper (ed), Working with Customary Justice Systems: Post Conflict and Fragile States IDLO (2011) 11, 12. 28 Ibid 13.
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DO LEGAL EMPOWERMENT STRATEGIES WORK IN INFORMAL JUSTICE SYSTEMS?
Evidence suggests that legal empowerment approaches to enhance women’s access to justice may work well in informal legal settings. Where women are provided with a forum to discuss and (re) interpret cultural or legal rules, the system may be open to positive transformation, particularly when it is both women and men who are advocating for a reinterpretation of such rules. When women are informed of their rights and encouraged to discuss or challenge informal laws and practices, they can put pressure on customary justice systems and achieve better protection for basic rights. In turn, this can reduce power imbalances and elite capture and improve the transparency of local government decision-making.
What do we mean by tend to emphasize community harmony The diversity of these systems does, informal justice systems? rather than individual rights. They aim however, make them extremely difficult Often described as ‘traditional’, to restore peace within the community to categorize. While such systems are ‘customary’ or ‘non-state’ systems, by repairing relationships between usually classified as informal, many of informal justice systems are not the disputing parties so that they can their institutions can be highly complex, all the same and may differ sharply “get on with the daily business of such as the intricate code of rules and in normative rules, processes living and working together in close procedures in the customary system and genesis.29 They can include communities”.34 in South and East Afghanistan (the indigenous or religious legal Pashtunwali).36 It is also potentially orders, NGO-led alternative dispute Another common characteristic incorrect to refer to such systems as mechanisms30 or popular justice of informal justice systems is that non-state. For example, the informal fora,31 among others. the process including any decisions system in Malawi has been incorporated made are rarely recorded. Rules and into the hierarchy of the formal justice Although extremely diverse, informal procedures tend to be applied flexibly and system. Finally, describing such systems are commonly distinguished as such, it is possible to have competing systems as ‘customary’ or ‘traditional’ from state justice systems in that they versions of a particular rule, with the is often inaccurate given the widespread frequently aim to resolve disputes result that there are usually multiple acknowledgement that such systems through mediation or arbitration, versions of informal laws, a situation have been substantially transformed by usually through a person or a group unknown in formal legal systems. different eras of colonial and post-colonial with standing in the community.32 They Nevertheless, such systems can still rule and socio-economic change.37 In often adopt practices that draw their be properly described as constituting some circumstances these changes authority from perceived cultural, law because, regardless of structure or have resulted in far more rigid or customary or religious concepts, rather origin, decisions hold an authoritative discriminatory informal systems than than the political or legal authority of status within the community through may have previously been the case.38 the state.33 Informal justice systems popular consent or deference.35
29 A vast array of practices and traditions has been categorized by policy makers and researchers as informal or customary, all existing within vastly different contexts. In this study, we use the term “informal justice systems” to refer to those systems that exist outside the formal justice system, although we recognize that many informal systems have a relationship to the formal justice system. In this study, alternative dispute resolution services provided by NGOs are not included in the definition of informal justice systems. 30 According to Harper, alternative dispute resolution services provided by NGOs, are “a recent but growing response to access to justice vacuums caused when formal and/or customary justice systems are unsatisfactory or ineffective. These fora are often grafted upon customary dispute resolution methodologies and then adjusted to offer enhanced procedural and rights guarantees.” E Harper, above n 2, 35. 31 Popular justice is defined by Engle Merry as an “informal process for making decisions and compelling compliance to a set of rules” S Engle Merry, ‘Popular Justice and the Ideology of Social Transformation’ (1992) 1(2) Social and Legal Studies 161, 162. Penal Reform International (PRI) is more specific and describes popular justice fora as justice fora which are not traditional, not run by NGOs and non-state. PRI notes that these have mainly been created in urban and peri- urban systems where no traditional justice systems previously existed. Penal Reform International, Access to Justice in Sub-Saharan Africa: The Role of Traditional and Informal Justice Systems (January 2001) 12, 14. 32 This may be a village head, elder, religious leader or other community figure. In practice the divide between mediation and arbitration is not always evident, and the resolution of a given dispute may be a blend of the two and/or may change according to the nature of the dispute under consideration. E Wojkowska and J Cunningham, ‘Justice Reform’s New Frontier: Engaging with Customary Systems to Legally Empower the Power’ in S Golub (ed), Legal Empowerment: A Practitioners’ Perspective IDLO (2011) 93, 95. 33 E Harper, Customary Justice: From Program Design to Impact Evaluation, IDLO (2011) 17. 34 Wojkowska and Cunningham, above n 32, 98. 35 Ibid 95. 36 Harper, above n 33, 17. 37 For examples in sub-Saharan Africa see Odinkalu, above n 17, 147-148.
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Why do women rely so much extensive parts of the population within on informal justice systems? the society. For example, customary ›LEGAL PLURALISM IS Although exact figures are difficult to tenure is said to cover 75 percent obtain, evidence clearly indicates that of land in most African countries, GETTING STRONGER, a significant number of women in the with such figures increasing to 90 NOT WEAKER‹ developing world access informal justice percent in Mozambique and Ghana.46 systems,39 especially in rural areas and IDLO’s research on non-state dispute poor urban areas.40 It is frequently at resolution systems in Afghanistan, the informal justice level that a number analyzing 271 case studies, found that of key issues of particular significance 30.9 percent of disputes were first to women are administrated and reported to community elders, a jirga the formal justice systems,50 including adjudicated, such as inheritance, family or a shura47 and that approximately 51 discriminatory state laws or a failure to law and access and ownership of land percent of cases were resolved at the apply the law in a non-discriminatory and natural resources. local jirga or district shura level.48 manner. For instance, while not gender specific, in an Asia Foundation study Informal justice systems operate The high use of informal justice systems conducted in East Timor, 50 percent of alongside formal justice systems in by women can be explained by a number respondents thought the formal system a wide variety of nations across the of factors that both drive women away favored the rich and powerful, whereas globe.41 The use of informal justice from the formal legal system and draw only 15 percent felt the same way about systems has been noted in countries them towards informal justice systems.49 the informal system.51 Overall, 9 out of in the Pacific,42 South America43 and UN Women has highlighted institutional 10 respondents indicated that they were South and South East Asia,44 as well and social factors that provide comfortable with solving a problem as in Africa.45 Such systems can cover disincentives for women to engage with through the informal systems.52
38 According to Falk Moore, indirect rule by the British in Africa, for example, distorted “native” authority, by strategically assigning duties to certain individuals and fundamentally altering the pre-existing balance of power. S Falk Moore, ‘Treating Law as Knowledge: Telling Colonial Officers What to Say to Africans about Running ‘Their Own’ Native Courts’ (1992) 26 Law and Society Review 11, 16 cited in L Chirayath, C Sage and M Woolcock, Customary Law and Policy Reform: Engaging with the Plurality of Justice Systems, prepared as a background paper for the World Development Report 2006: Equity and Development (2005) 8. A detailed analysis of the evolution of customary law in the colonial and post-colonial context in relation to women’s access to land is provided in the case study on the Solomon Islands. 39 This conclusion is supported by a recent study on the use of informal justice systems which showed that in Lesotho, Mozambique and Vietnam more than three times as many women reported that they had contacted a traditional or community leader about a grievance than a government official in the last three years. The data refer to the percentage of respondents who said that in the previous three years they had at least once contacted a government official or traditional/ community leader for personal, family or neighborhood problems, or problems with government officials and policies. UN Women, 2011-2012 Progress of the World’s Women: In Pursuit of Justice (2011) 52, 66. 40 DFID, Non-state Justice and Security Systems (May 2004) 1. 41 See L Chirayath, C Sage and M Woolcock, Customary Law and Policy Reform: Engaging with the Plurality of Justice Systems, prepared as a background paper for the World Development Report 2006: Equity and Development (2005) 2. 42 See UNICEF, Traditional Justice Systems in the Pacific, Indonesia and Timor-Leste, Paper commissioned by UNICEF Papua New Guinea for the 2009 Justice for Children in the Pacific, Indonesia and Timor-Leste, EAPRO Sub-Regional Workshop (2009). 43 For examples of informal justice mechanisms in Colombia and Peru see DFID, Non-state Justice and Security Systems (May 2004). 44 For example, in Bangladesh an estimated 60-70% of all disputes are processed through the traditional Shalish (Salish) councils, a type of traditional alternative dispute resolution system that is often used at the local level. UNDP, Programming for Justice: Access for All - A Practitioner’s Guide to a Human Rights-Based Approach to Access to Justice (2005) 100. 45 For example, evidence points to the fact that “up to 90% of cases in Nigeria are settled by customary courts”. C A Odinkalu, ‘Poor Justice or Justice for the Poor? A Policy Framework for Reform of Customary and Informal Justice Systems in Africa’ in C Sage and M Woolcock (eds), The World Bank Legal Review: Law, Equity and Development (2006) 141, 144 (citation omitted) while in Sierra Leone up 85% percent of the population is said to turn to informal courts to adjudicate disputes: UNDP, Gender Equality and Justice Programming: Equitable Access to Justice for Women (2007) 15. 46 C Augustinas, Comparative analysis of land administration systems: African review with special reference to Mozambique, Uganda, Namibia, Ghana, South Africa, World Bank (2003) cited in Chirayath, Sage and Woolcock, above n 41, 3. 47 Jirga is a Pashto term usually used for more ad hoc meetings gathered to address a specific dispute. Shura is a Dari word referring to permanent and quasi- permanent local councils. J Dempsey and N Coburn, Informal Dispute Resolution in Afghanistan, US Institute for Peace, Special Report 247 (August 2010) 2. 48 IDLO, Report on Formal-Informal Justice Relations in Afghanistan (forthcoming 2012) 19. 49 Wojkowska and Cunningham above n 32, 96. 50 UN Women, 2011-2012 Progress of the World’s Women: In Pursuit of Justice (2011) 52. 51 Asia Foundation, Law and Justice in East Timor: A Survey of Citizen Awareness and Attitudes Regarding Law and Justice in East Timor (2004) cited in Wojkowska and Cunningham, above n 32, 96. 52 Ibid 96.
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Furthermore, formal courts and Also, women typically have less time and formal justice system rarely orders institutions of justice may be money, and lower levels of education the payment of compensation for physically inaccessible or may operate compared to men.57 This, combined criminal acts. in a language that women do not with the high costs often associated understand. IDLO’s research on informal with formal justice systems, can make IDLO research in Afghanistan confirms justice in Aceh, Indonesia, for example, such systems incomprehensible and citizens’ preferences for local jirgas and observed that while neighborhood ineffective in ensuring the speedy district shuras over state courts, with heads, village heads, informal justice resolution of women’s grievances.58 73 percent describing them as fair and leaders (adat leaders) and religious Finally, women may mistrust towards trusted, and 70 percent describing them leaders are based in the village, known formal legal institutions, particularly as following the local norms and values to community members and accessible, where the legal system supports or is of the people.62 By contrast, only 53 the police and the courts are often associated with oppressive practices.59 percent of respondents found the state located in distant district capitals.53 courts fair and trusted and 51 percent With these shortcomings in mind, many stated that the state courts follow the Social factors may also prevent women women turn to informal justice systems. local norms and values of the people.63 from turning to the formal justice These systems may be attractive Of particular relevance to women, 66 system to assert their rights. Lack of because of the “familiar procedures and percent of respondents indicated that legal awareness, dependence on male language, the limited costs of dispute they would prefer non-criminal family relatives for assistance and resources, settlement procedures, the short disputes to be arbitrated by the jirga or and the threat of stigma or sanction can duration of case resolution, knowledge shura,64 while 66 percent indicated that all contribute to this.54 of the local context among the dispute they would first turn to the jirga to seek settlers and the more restorative justice relating to violence inside the In a study on women’s access to land nature of the process”.60 For example, home.65 rights in Kenya, it was reported that the procedure common in many when women go to court they are seen informal justice systems of providing Similarly, respondents in a study on to “undercut the man’s household compensation to victims of criminal informal justice systems in Liberia role of ‘owner’ and ‘controller’, with activity may be popular among women overwhelmingly expressed a desire for respondents also calling it ‘insulting because it “reflects the economic traditional leaders to have an official and disrespectful toward a husband consequences of crime”,61 a concern role in the formal justice system.66 and community’”.55 The study noted of particular importance to women in Respondents indicated that even if the that when a woman succeeds in court, countries with no social security system formal justice system operated fairly she may subsequently face threats of and where women may be barred from and was free from corruption, the violence, altercations, beatings access to the labor market. By contrast, average Liberian would still prefer the and murder.56 the mostly retributive approach of the informal system, which was credited for
53 S Clark and M Stephens, ‘Reducing Injustice? A Grounded Approach to Strengthening Hybrid Justice Systems; lessons from Indonesia’ in J Ubink (ed), Customary Justice: Perspectives on Legal Empowerment IDLO (2011) 67, 79. 54 UN Women, above n 50, 52. 55 T Chopra and A Harrington, Arguing Traditions: Denying Kenya’s Women Access to Land Rights, World Bank: Justice for the Poor Research Project, Number 2 (2010) 15. 56 Ibid. 57 UN Women, above n 50, 52. 58 Ibid 52. 59 E Wojkowska and J Cunningham, above n 32, 96. 60 J Ubink and B van Rooij, ‘Towards Customary Legal Empowerment: An Introduction’ in J Ubink (ed), Customary Justice, Perspectives on Legal Empowerment IDLO (2011) 7, 8. 61 E Harper, above n 33, 29. 62 IDLO, Report on Formal-Informal Justice Relations in Afghanistan (2011) (forthcoming) 7. 63 Ibid. 64 Ibid 9. 65 Ibid 10 66 A C Rawls, ‘Policy Proposals for Justice Reform in Liberia: Opportunities Under the Current Legal Framework to Expand Access to Justice’ in J Ubink (ed), Customary Justice Perspectives on Legal Empowerment IDLO (2011) 91, 92. The study discussed the results of the United States Institute of Peace field research in Liberia, Looking for Justice: Liberian Experiences with and Perceptions of Local Options (November 2009).
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taking into account the underlying cause of the informal justice system and of a dispute and seeking to repair the encourage women’s empowerment by ›WOMEN’S VICTORIES tear in the social fabric.67 outlawing discriminatory practices and addressing the deficiencies women face IN COURT MAY MEAN Finally, the outcomes of the formal in accessing justice in the formal legal OSTRACISM IN PRACTICE‹ justice system can also have negative system.70 economic consequences for female members of the community more Informal systems have been often generally, which may push women to criticized for applying practices that seek justice at the informal level. For fail to uphold international human example, in situations where prisons are rights standards,71 in particular those located far away from the community in pertaining to women’s equality and which the crime took place, and where non-discrimination, as enshrined in the male perpetrator is the breadwinner the Convention on the Elimination of for a large family, removing the male All Forms of Discrimination against impact on women in cases where such perpetrator from the community may Women (CEDAW).72 Indeed, the CEDAW laws perpetuate the use of customs and indirectly punish those female relatives Committee (the Committee) has cultural and traditional practices that who are economically dependent often expressed concern about the are harmful to and discriminate against on him.68 growing integration of informal laws women.”73 The Committee thereby into the state hierarchy and has urged called upon Namibia to: What are the challenges of informal State Parties to monitor carefully systems for women’s access to justice? the impact of such laws on women’s › Study the impact of the implementation Over the last decade, there have been rights protections. For example, in its of the Traditional Authorities Act (Act No. considerable discussions over the Concluding Comments on Namibia 25 of 2000) and the Community Courts challenges of informal justice systems in 2007, the Committee noted that Act (October 2003) so as to ensure that to advance the rights of women.69 the Traditional Authorities Act, which customs and cultural and traditional Indeed, skeptics of engagement with gives traditional authorities the right to practices that are harmful to and informal systems have argued that supervise and ensure the observance discriminate against women it may be preferable to limit the role of customary law, “may have a negative are discontinued.74
67 Ibid. Interestingly, Rawls observes that the Liberians consulted for the project rarely, if at all, raised gender-equality as an issue of concern. This was left to be raised by international NGOs and representatives of Liberia’s formal system. 68 E Harper, above n 33, 29. 69 For discussion of critiques of engagement with informal justice systems see: E M Grina, ‘Mainstreaming Gender in Rule of Law Initiatives in Post-Conflict Settings’ (2011) 17(2) William and Mary Journal of Women and the Law, 435, 461-462. For an analysis of African feminists perspectives see A Whitehead and D Tsikata, ‘Policy Discourses on Women’s Land Rights in Sub-Saharan Africa: The Implications of the Re-turn to the Customary’ (January and April 2003) 3(1-2) Journal of Agrarian Change, 67. 70 See C Nyamu-Musembi, ‘How Should Human Rights and Development Respond to Cultural Legitimization of Gender Hierarchy in Developing Countries?’ (Spring 2000), 41(2) Harvard International Law Journal 381,391. 71 For example, these practices contravene arts. 1, 2, 3, 4, 7, 8 and 16 of the Universal Declaration of Human Rights (right to life, liberty and security of person, right to non-discrimination and equality before the law, right to effective remedy for acts violating fundamental rights, equal rights in marriage), UN General Assembly, Universal Declaration of Human Rights GA Res. 217 A (III) U.N. Doc A/810 (10 December 1948) [71]; art. 23 of the ICCPR (right to marriage with full and free consent); art. 16 of the CEDAW (equality of men and women in marriage); art. 17 of the ICCPR (freedom from unlawful interference in privacy, family, home or correspondence, honor and reputation, and the right to the protection of the law against such attacks); arts. 3 and 12 of the ICESCR (the equal right of men and women to the enjoyment of all economic, social and cultural rights and the right to the highest attainable standard of physical or mental health) and arts. 2, 3, 9, 16, 19 and 28 of the Convention on the Rights of Child (non-discrimination of the rights contained in the Convention on the basis of sex, obligation to make the best interests of the child the primary consideration, non-separation of children from parents against their will, non-interference with child’s liberty and privacy, obligation to protect children from all forms of physical and sexual abuse and exploitation, right of the child to education). Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990). 72 CEDAW above n 13. The CEDAW has been ratified by 187 countries. However, a significant number of states have made reservations to the articles in the CEDAW. Potentially the most relevant article in the CEDAW pertaining to informal justice systems is art. 2(f) which obligates State Parties to undertake all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women. Other articles of significance art. 13 (the obligation on State Parties to ensure women’s equal right to enjoyment of all aspects of cultural life); art. 15 (the obligation to ensure women’s equality with men before the law, including an identical legal capacity to that of men) and art. 16 (the obligation to eliminate discrimination against women in all matters relating to marriage and family relations). 73 CEDAW Committee ‘Concluding comments of the Committee on the Elimination of Discrimination against Women: Namibia’ (2 February 2007) 37th Session, UN Doc CEDAW/C/NAM/CO/3 [16-17]. 74 Ibid.
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In its jurisprudence, the Committee girls as resolution for a crime or as informal laws and to represent the systematically encourages states to compensation.76 One example of this community may be overtly or indirectly eradicate discriminatory practices, can be seen in the customary practices hostile to changes in local customs through awareness-raising and in many of Somalia’s tribes (xeer), that result in a depletion of their power education campaigns. For example, in which require the forced marriage base or that challenge long-entrenched its Concluding Comments on Rwanda of a girl into another clan as part of prejudices. In these circumstances, in 2009 the Committee called upon a compensation payment or inter- attempts by individual women to Rwanda to: clan peace settlement, so as to link challenge discriminatory norms may the two groups together. In some result at best in accusations that such › Implement comprehensive measures circumstances, women may be excluded women are acting against local culture directed to change the widely accepted from participating at all in informal or have become ‘Westernized’. At worse, attitudes and practices of women’s justice dispute resolution processes. such attempts can lead to outright subordination and the stereotypical A case study on the institution of ostracism and physical harm. roles applied to both sexes. Such bashingantahe in Burundi reveals that measures should include awareness- women are only considered in their It is also important to acknowledge raising and educational campaigns role of wives or widows in the that informal justice systems often addressing women and men, girls and institution’s deliberations.77 embody the dominant social code and boys, religious and community leaders, power hierarchies. The lack of written parents, teachers and officials, in As in the formal justice system, informal procedural and substantive rules accordance with the obligations under systems may also not consider gender- in informal justice systems means articles 2 (f) and 5 (a) of the Convention. specific crimes as offences, including that outcomes are determined on a The Committee also recommends that rape, (both within and outside marriage) case-by-case basis according to the the State party encourage the media to and domestic violence, or may view “power, status and wealth differentials discuss and promote non-stereotypical such acts as only minor offences.78 For and relations between disputants, and positive images of women, and example, in some areas of northern discriminatory social norms, and promote the value of gender equality to Kenya, the customary penalty for rape is leaders’ perceptions of group cohesion”. society as a whole.75 usually a fine and the amount will differ In addition, the parties’ individual depending on whether the victim is relationship with the community Informal systems may be male- married or single.79 leader can influence the outcome of dominated and favor patriarchal the dispute. Indeed, it has been noted outcomes. While it is important not to Informal systems have been criticized that community-mediated settlements generalize, informal justice systems for being not open to modernization or often reflect “what the stronger is often tolerate or reinforce discriminatory broader development goals, in part due willing to concede and the weaker can practices such as female genital to their perceived lack of democratic successfully demand”.81 mutilation, bride sales, denial of accountability mechanisms and lack widow inheritance, or discriminatory of legal authority and enforceability of Thus, while decisions are said to be sanctions such as forced marriage decision.80 Many community leaders consensual, the parties are frequently or the exchange of women or young with power and authority to speak on under pressure to agree to what is
75 CEDAW Committee ‘Draft Concluding observations of the Committee on the Elimination of Discrimination against Women: Rwanda’ (9 September 2009) 43rd Session, UN Doc CEDAW/CO/6 [22]. 76 D J Gerstle, Under the Acacia Tree: Solving Legal Dilemmas for Children in Somalia, UNDP (2007) 88, 59, J Gundel, The Predicament of the Oday: The Role of Traditional Structures in Security, Rights, Law and Development in Somalia, DRC (2006) 55-56, and in some areas of Afghanistan: USAID, Afghanistan Rule of Law Project: Field Study of Informal and Customary Justice in Afghanistan and Recommendations on Improving Access to Justice Between Formal Courts and Informal Bodies (2005) 49-50, both sources cited in E Harper, above n 33, 95. 77 The term basingantahe refers to “men of integrity who are responsible for settling conflicts at all levels”. A Naniwe-Kaburahe ‘The Institution of Bashingantahe in Burundi’ in L Huyse and M Salter (eds), Traditional Justice and Reconciliation after Violent Conflict: Learning from African Experiences (2008) 149, 154. 78 For example, in Somalia, the concept of rape within marriage is poorly understood and scarcely acknowledged: Gerstle, above n 76, cited in Harper above n 33, 95. 79 B Ayuko and T Chopra, The Illusion of Inclusion: Women’s Access to Rights in Northern Kenya, World Bank Justice for the Poor Research Report (2008) 19. The example cited refers to the Borana community. The report notes that visible physical injuries on women are unacceptable in this community and the elders will punish the individual responsible, with the measure of compensation and/or punishment depending on the degree or severity of the injuries. 80 Chirayath, Sage and Woolcock, above n 41, 4. 81 Merry, Local, Non-Traditional Justice: the Case for Change in Non-State Justice in Indonesia, World Bank Indonesia, Justice for the Poor Program (2006) cited in E Wojkowska, Doing Justice: how informal justice systems can contribute, UNDP, Oslo Governance Centre, The Democratic Governance Fellowship Programme (2006) 20.
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fair and equitable in the view of the leaders and to accept outcomes with which they are not necessarily satisfied. These outcomes are often legitimized in the name of religion, local custom or tradition.82 This situation tends to disadvantage women, who lack the power to challenge these social constructions.
Furthermore, given the weak regulatory environment in which informal justice systems often operate, community leaders are rarely accountable to their communities or to a higher authority, making them prone to corruption, elite capture, nepotism and politicization. Any profound changes to the existing status quo - for example, by expanding women’s involvement in decision- making - may diminish the community leader’s stronghold over valuable community resources. This can result in reforms being fiercely and powerfully resisted, as has been demonstrated by a number of studies on attempts to reform informal systems in sub- Image: Luke Powell Saharan Africa.83 of women in the developing world back to community authorities in and they are often the “cornerstone cases perceived as “private matters”.87 Can engagement with informal systems of dispute resolutions for the poor IDLO research in Aceh, East Timor enhance women’s access to justice? and disadvantaged in developing and Afghanistan revealed that this is Yet, if it is agreed that one of the countries”.85 It follows that any serious a common problem. In these contexts, objectives of rule of law reform is to attempt at improving access to justice it is preferable to find the best entry enhance women’s access to justice for women needs to consider ways to points, rather than making a and improve their substantive rights, engage with such systems. ‘choice’ between informal systems ignoring informal justice systems can Indeed, informal systems may be the and formal justice. Simply ignoring result in dismissing one of the few only available option for justice in informal systems will leave women and most probable entry points for fragile or conflict-affected countries between the cracks of the two systems enhancing such access.84 As the above where formal courts are incapable of - neither protected by the formal legal discussion shows, informal justice processing cases in a timely manner,86 system, nor adequately served within systems are used by a large number or where judicial officers send women the informal system.88
82 For instance, in disputes relating to property in some parts of Kenya, village leaders are frequently bribed by the more powerful party to uphold illegal practices, including efforts to deny women’s statutory right to inherit land from their husbands. These actions are justified on the basis that “traditionally” land cannot be passed outside the patrilineage and must remain in the hands of male community members. See Chopra and Harrington, above n 55, 2. 83 See Chopra and Harrington, above n 55. Salter and Huyse also record that efforts to increase the participation of women in traditional mechanisms of accountability in sub-Saharan African are frequently “being held up by the conservative reflexes of men”. L Huyse and M Salter (eds), Traditional Justice and Reconciliation after Violent Conflict: Learning from African Experiences (2008) 184 cited in F Ni Aolain and M Hamilton, ‘Gender and the Rule of Law in Transitional Societies’ (2009) 18 Minnesota Journal of International Law, 380, 394. 84 E Harper, above n 2, 31. 85 Ibid. 86 For example, Harper notes that in the aftermath of the 2004 Indian Ocean tsunami the only functioning dispute resolution apparatus in Aceh, Indonesia was the informal justice system. Even after the courts re-opened, they were incapable of processing the huge number of inheritance, property and guardianship cases that were generated. As such, strengthening the customary fora was deemed the most cost-effective means of resolving small-scale disputes. Ibid. 87 Ibid. 88 Ibid.
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Arguably, the dynamic nature of mediation techniques”.93 Implicit in interest the systems already embody.96 informal justice systems may give this approach is the assumption that Also, it is important to consider that scope to creative and more meaningful such strategies will improve access to engagement with informal justice projects targeting women’s interests justice94 by enabling rights-holders to systems may inadvertently result in the that do not exist at the formal justice enjoy agency and claim their rights. This formalization of a two-track system that level.89 The flexibility of informal systems policy transformation has taken place reinforces unequal access to justice, can allow leaders “to craft pragmatic against the backdrop of an increased whereby courts are reserved for the solutions that suit local conditions and emphasis on national ownership of aid wealthy and the victims of serious respond to the issues at the crux of a projects, a principle underlying the 2005 crime, while the poor and victims of dispute”,90 whereas progressive statutory Paris Declaration on Aid Effectiveness ‘minor’ injustices are forced to accept reforms, while important, can be slow and the 2008 Accra Agenda for Action.95 ‘secondary’ forms of justice.97 Notably, to implement and may not be the ideal the definition of ‘minor’ in this regard is solution to address specific community At the same time, engagement is not generally determined by power-holders needs. As a matter of fact, engagement without challenges. In particular, as in society, who frequently tend to with informal justice systems is informal justice systems are inclined be men. increasingly recognized as essential to embody inequalities and patriarchal to address poverty reduction, protect interpretations of culture, it is critical However, while a substantial body of the vulnerable and ensure adequate that engagement proceeds with caution. analytical work on informal justice implementation of international human The case studies featured below show systems has mentioned the challenges rights standards.91 For example, the that it is extremely difficult to address engagement poses for women’s rights, 2008 CLEP Report proposed that the profound structural inequalities, much of the analysis fails to provide alongside programs to improve state power asymmetries and discriminatory practical guidance as to how to foster justice systems “reformers should social norms that perpetuate women’s rights in these systems. Some seek out opportunities for strategic women’s disempowerment within solutions tend to be contradictory, interventions that improve the operation the informal justice setting. In these arguing for compliance with human of informal or customary justice systems circumstances, it has been proposed rights standards, but at the same time and facilitate the efficient integration of that the development community needs supporting local ownership even where formal and informal systems”.92 More to seek greater input on the views of local practices are clearly at odds with recently, the 2011 UN Secretary-General local women’s organizations, justice women’s human rights.98 Consultation Report on the Rule of Law recognized seekers and community groups in is the cornerstone of the development “the potential of informal justice order to determine whether equitable community’s mantra relating to local mechanisms in strengthening the rule mediated solutions might ever be ownership, but often the voices that of law” while noting “the potential role considered possible in communities speak for a given community are male. of informal justice practices to enhance where disputants have gross power Although there is a push to ensure peace and security through traditional differentials, discounting the power women’s voices are heard in these
89 Ibid. 90 Harper, above n 33, 19. 91 For example, in 2009 the Australian government’s Strategic Framework for Access to Justice stated “to improve the quality of dispute resolution, justice must be obtained in individuals’ daily activities…reform should focus on everyday justice, not just the mechanics of legal institutions which people may not be able to afford.” Australian Commonwealth Government, 2009 Strategic Framework for Access to Justice cited in Clark and Stephens, above n 53, 67. 92 CLEP, Making the Law Work for Everyone: Volume II: Working Group Reports (2008) 43. 93 UN Security Council, ‘The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies Report of the Secretary General’ (12 October 2011) UN Doc S/2011/634 [39]. 94 R Clarke, ‘Customary Legal Empowerment: Towards a More Critical Approach’ in J Ubink (ed), Customary Justice, Perspectives on Legal Empowerment IDLO (2011) 43, 45. 95 Paris Declaration on Aid Effectiveness and the Accra Agenda for Action (2005/2008) OECD
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consultative processes, such objectives human rights standards. Some argue are highly challenged in environments that these approaches do not encourage ›STATUTORY where women do not have the same a holistic understanding of the context access to public space as their male in which discriminatory practices are INTERVENTIONS counterparts. embedded and, as a result, prevent MUST BE EMBRACED the development of comprehensive Where women’s rights have been solutions.100 For example, in some FROM WITHIN THE actively addressed within the informal settings the practice of making men COMMUNITY‹ justice context, the main donor who commit rape marry their female approach and that adopted by some victims arises from the concern that national governments has been to the victim would otherwise be unable target the interface between the to support herself, due to stigma and formal and informal legal system by discriminatory attitudes towards rape fixing the problems in informal justice victims. While such practices are systems. These efforts aim to align neither justifiable nor supportable, customary rules and procedures with simply outlawing them without internationally recognized standards considering the basic economic, of women’s rights – through expanding financial and social safeguards for women’s participation in informal female victims may leave women in decision making, codifying informal an equally vulnerable position. laws to comply with international human concentrate exclusively on bringing rights, outlawing harmful customary Similarly, research indicates that law informal systems into alignment practices, ensuring that informal justice reform aiming to engineer informal with international norms might be systems are accountable to the state justice systems to comply with women’s shortsighted and can even result in system, or a combination of these rights without addressing male outcomes that are even approaches.99 These strategies, mostly dominated community power structures more problematic for women in reflecting orthodox theories of reform, is generally unsuccessful in furthering that community. are technocratic in nature and raise women’s rights.101 For instance, a number of practical concerns when attempts in Kenya to transform In addition, reforms achieved with implemented in isolation. customary procedures relating to land isolated fix it approaches are unlikely titling so as to widen women’s access to to be sustainable in the long term. ‘Fix it’ approaches risk being land had the effect of cementing male They risk being perceived as alien to the unsuccessful if they fail to consider ownership, and in addition, precluding community concerned, especially when the underlying reasons for which local women’s access and use of land under discriminatory practices are deeply norms do not align with international custom.102 In this way, approaches that entrenched.103
99 For a detailed analysis of each of these strategies see Harper ‘Engaging with Customary Justice Systems’ above n 284, 32-42. 100 Nyamu-Musembi, above n 70, 393. 101 For example, in Uganda, Area Land Committees must have at least three women members and in the United Republic of Tanzania, women must make up three of the Village Land Council’s seven members. Both strategies have had mixed results, with appointment not necessarily followed by meaningful participation of women. Some women are selected specifically because they do not question dominant norms, while in other circumstances they are constrained from acting freely. C Nyamu-Musembi, Review of Experience in Engaging with ‘Non-State’ Justice Systems in East Africa, Commissioned by Governance Division, DFID (2003) 4, 26 cited in Harper, above n 33, 42 See also the study undertaken by Chopra and Harrington, above n 55 and the examples in Harper, above n 33, 42. 102 Evidence suggests that in Kenya the introduction of statutory law related to title registration and land ownership actually eroded women’s claims to land. Individualized tenure was instituted in Kenya in part to overcome a system of inheritance via the male members of the community. However, overwhelmingly men registered their names on land deeds because of their traditional powers to allocate within the family structure. Women lacked the opportunity to contest the customary access and usage rights that the statutory scheme did not recognize. As a consequence, women in Kenya are now dependent on what male family members own, with the statutory law trumping their broader rights to access land under the customary system. This has particularly impacted on widows, who may have rights to stay on the land under some Kenyan customs which tie land rights closely to family and clan identities, but whose position in practice is frequently subject to land grabbing by in-laws. Such actions are based on economic motivations and justified under the tradition of ensuring land remains within the paternal line, even when this may be contrary to the formal law. See Chopra and Harrington, above n 55. See also P C Diaz, Customary Law Reform in Sub-Saharan Africa: The Status of Women Between Customs and Statutes, UNIFEM Briefing Note (February 2006) cited in UNDP, Gender Equality and Justice Programming above n 45, 15. 103 For example, evidence suggests that legislation in South Africa and Liberia outlawing black magic did not have a significant impact on the practice, and frequently drove such practices underground. Harper, above n 33, 46-47.
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DO LEGAL EMPOWERMENT STRATEGIES WORK IN INFORMAL JUSTICE SYSTEMS? (continued)
This is particularly the case for reforms economic institutions involved in the aiming to enhance women’s rights, production of culture and the shaping ›CULTURE IS NOT STATIC, which are often perceived by decision of gender relations, including the role makers as ‘Western-imposed’ and not of the state.106 They see women as AND NOR ARE INFORMAL necessarily as an organic element of potential agents that can be involved SYSTEMS‹ the cultural or religious landscape. It is in the production of culture and the therefore well accepted that statutory shaping of gender relations107 and interventions are unlikely to produce argue for recognition that informal results unless changes are embraced systems change over time and are from within the community and reforms not stagnant. As a result, they press are grounded in local practices, history for development practitioners to look and culture.104 for appropriate openings presented within the local justice framework to Finally, statutory reforms targeting work collaboratively with community discriminatory informal practices members committed to social change will have little impact for women and the redefinition of culture, in circumstances where the courts including women’s groups active and other services remain physically at the local level.108 inaccessible, or the laws themselves remain unknown to women. These observations do not imply that attempts to bring informal systems It is partly for these reasons that some into the human rights framework critics view such approaches towards through statutory measures have no informal systems as “decontextualized, place as a strategy to address women’s hegemonic and counterproductive access to justice.109 Rather, they are for gender equality”.105 They highlight made to emphasize that such reforms that these approaches presume are generally more successful when culture is static and that women are they are complemented by efforts to merely the recipients of informal address asymmetric power structures practices. Rather than turning away at the local level110 and when they take from informal or ‘traditional’ practices, into account the wider economic and these scholars emphasize the need social context in which discriminatory to question all political, social and practices take place.
104 As noted by Khair “it is important to bear in mind that simply grafting borrowed ideas from foreign legal cultures would not produce the desired effects. Rather it is the ‘local’ as opposed to the ‘borrowed’ that essentially lends efficacy and meaning to laws and legal institutions, influences the use and administration of laws and values in a society”. S Khair, ‘Evaluating Legal Empowerment: Problems of Analysis and Measurement’ (2009) 1 Hague Journal on the Rule of Law 33, 35. The importance of reforms being located in local culture also noted by women’s rights activists, who have observed that “there is a pressing need for women’s rights activism to be grounded in local history and idiom to be relevant”, Report of the South Asia Plus Consultation on Culture, Women and Human Rights September 2-3, 2010, Dhulikhel, Nepal, Partners for Law and Development (2010) 29. 105 Nyamu-Musembi, above n 70, 394. 106 Ibid 405. The case study provided below on the Solomon Island’s customary land tenures system demonstrates that state recognition of the rights of customary groups to mining royalties has generally benefited male leaders but not women. The case study shows that this is not necessarily due to the inherent discrimination against women in the informal system, but rather because the historical processes that have disempowered women within the customary community have not been adequately addressed by the state. 107 See comments in Report of the South Asia Plus Consultation on Culture, Women and Human Rights, above n 104, 29. 108 Nyamu-Musembi, above n 70, 406. 109 In some contexts, legislative reforms have had some successes, such as for example in the Namibian case study below where it appears that women felt more empowered in connection with the legal and political changes occurring at the central government level. 110 I van den Meene and B van Rooij, Access to Justice and Legal Empowerment: Making the Poor Central in Legal Development Cooperation, Leiden University Law Governance and Development Research and Policy Notes (February 2008) citing L Cotula, Legal empowerment for local resource control, International Institution for Environment and Development (2007) 113.
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Image: Eric Kanalstein
23 ACCESSING JUSTICE
LEARNING FROM PRACTICE: EIGHT SUCCESSFUL WAYS OF EMPOWERING WOMEN TO ACCESS JUSTICE
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eforming justice systems to advance the position of women in plural legal settings Rcan be highly challenging. So far, practical attempts to address discriminatory practices against women accessing diverse justice fora have mostly fallen into two principle categories. The first presumes the patriarchal character of informal systems. It thus targets the obstacles that undermine women’s access to and use of formal courts and seeks to limit the role of informal systems. This strategy may be of limited success because it presumes the formal law is effective and implemented in a non- discriminatory manner, whereas all too often the formal law replicates many of the discriminatory practices that are found in the informal setting.111 The second approach focuses on ensuring that informal systems comply with international human rights standards (the ‘fix it’ approach), for example through statutory oversight or the appointment of women leaders. As is discussed in Image: Martin Sojka more detail above, in isolation, this approach is equally limiting because it can suffer from a lack of local legitimacy the formal or informal level. In the lack of services available for girls who and fails to address the power dynamics Rwandan case study for example, have been the victims of trafficking so and the social and economic context the intervention took place at the as to ensure that the girls’ statutory that sustains women’s inequality village level because of the perceived rights under anti-trafficking laws were and discriminatory practices at the opportunities the mediation model adhered to, thus providing an instructive community level. offered for women when compared illustration as to how empowerment with the formal adjudication model strategies need to target the justice The eight case studies described used at the next stage. By contrast, platform that is the most receptive to below share a common objective: they the paralegal projects in Mozambique the advancement of women’s rights. seek to institute progressive reforms and Tanzania sought to address both and secure fairer justice outcomes mediated decision-making fora and Overall, the case studies tend to show for women through empowerment formal courts in relation to widow’s that legal empowerment strategies approaches. Most of them also claims to inheritance, based on the can be successfully used to enhance share a common methodology in fact that both systems were used by access to justice for women in a variety designing the intervention, which widows. In addition, all interventions of justice systems, both at the formal involves compiling detailed historical cater to the actual everyday needs and and informal levels. If correctly applied and contemporary analysis of the experiences of women. For example, and tailored to local needs, legal local setting, understanding the core the Moroccan project supported women empowerment approaches can improve issues for women in that community in understanding the procedures justice outcomes and contribute to the and identifying the best entry points needed to issue a Family Booklet. In fair resolution of women’s everyday to address such issues, whether at West Bengal, the project addressed the grievances.
111 Chopra and Isser, above n 21, 21.
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GENDER EQUALITY ON THE HORIZON: THE CASE OF UUKWAMBI TRADITIONAL AUTHORITY IN NAMIBIA112
belief in Namibia that traditional rule could not and would not accommodate women’s rights. In particular, the traditional system included norms that were detrimental to women’s rights. 1 A salient example is the customary 2 Introduction inheritance norm that states that upon The intervention The Namibian customary system and a man’s death, his estate is inherited The traditional court system exists its administration was severely gender by his matrilineal family. Despite a side-by-side the formal justice system in imbalanced and both opponents and customary obligation of the husband’s Namibia, and is specifically provided for proponents of gender equality long family to support needy widows and by legislation.114 The legislation confirms believed that women’s rights and children, widows and their children that the designation of a Chief shall be traditional rule were eternal foes. were often chased out of the house, regulated by customary law and defines Whether or not this was the case in back to the widow’s matrilineal family, the powers, duties and functions of pre-colonial times is not certain, as the in a practice often referred to as ‘widow traditional authorities.115 presumption of women’s traditional chasing’ or ‘property grabbing’. inferiority within such systems is Since 1993 there has been a push highly disputable.113 What is clear is Notwithstanding these shortcomings, in Namibia to increase women’s that colonial intervention during the traditional leaders played and continue participation in traditional courts, twentieth century promoted changes to play an important role in present-day for example by appointing women as in local customary norms, resulting in rural Namibia, with evidence showing leaders and as representatives in village extensive gender disparity in Namibia. that despite regional differences and court cases. The Uukwambi Traditional Women leaders were all but purged individual dissatisfaction, traditional Authority116 in northern Namibia sought from the local traditional arena and leadership is considered a necessary to address gender inequality within the women were largely excluded from and viable institution. Empirical studies customary system in three ways: participation in traditional courts. As undertaken in the mid-1990s showed such, the emerging structures of the a positive attitude towards traditional i) Under the leadership of Chief Iipumbu, colonial tribal system evolved into all- authority among respondents in both the Uukwambi Traditional Authority (the male domains. Other factors, such as the north and south of Namibia. Notably, Traditional Authority) embarked on a the emergence of male contract labor support for traditional leadership did process to increase the number of women resulting in the introduction of a male- not preclude negative feelings toward traditional leaders and women members controlled cash economy, as well as the incumbent traditional leaders. In of the traditional leaders’ committee. the influence of Western missionaries this context, any intervention aimed at and Christianity, exacerbated the empowering women in Namibia would The Traditional Authority, and Chief subordinate position of women in society likely have considerably more impact if it Iipumbu in particular, actively promoted and combined to create a widespread addressed the customary sphere. women’s leadership, both in public
112 The full text of this case study, including references, is found in J Ubink, ‘Gender Equality on the Horizon: The Case of Uukwambi Traditional Authority, Northern Namibia’ in E Harper (ed), Working with Customary Justice Systems: Post Conflict and Fragile States IDLO (2011) 51-71. 113 According to Becker, writing specifically in relation to the role of women in pre-colonial Owambo, in many communities women had access to property, the mat- rilineal system tempered the control of men over women and especially of husbands over wives and women played important roles as healers and ritual leaders. H Becker, ‘We want women to be given an equal chance. Post-independence rural politics in northern Namibia’ in Meintjies, Pillay and Turshen (eds), The Aftermath: Women in Post-Conflict Transformation (2001) 255, 277, cited in Ubink, above n 112, 55. 114 The 1990 Constitution of the Republic of Namibia does not mention traditional authorities or traditional courts. However their existence can be deduced from arts. 66(1) and 102(5). The former stipulates the validity of the customary law and common law in force on the date of independence, subject to the condition that they do not conflict with the Constitution or any other statute. Art. 102(5) calls for the establishment of a Council of Traditional Leaders whose function is to advise on communal land management and on other matters referred to it by the President. An inquiry into traditional leaders lead to the passage of the Traditional Authorities Act 1995 the provisions of which were largely reproduced in the Traditional Authorities Act 2005 (the Act). The Act currently regulates traditional leadership and provides for the establishment of traditional authorities in traditional communities, which comprises of a chief or head, senior traditional councilors and traditional councilors. Section 14(a) of the Act states that “any custom, tradition, practice or usage which is discriminatory or which detracts from or violates the rights of any person as guaranteed under the Constitution of Namibia or any other statutory law” shall cease to apply. Art. 10 of the Constitution prohibits discrimination on the grounds of inter alia sex, therefore rendering redundant any customary law that violates the norms of gender equality. 115 Their main function, according to the Act, relate to the promotion of peace and welfare in the community, the administration and development of customary law and the supervision of its observance, and the preservation of the local culture.
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speeches and by appointing women at session “You women have been various levels of traditional leadership. neglected. Now it is time for change. ›TRADITIONAL HEADMAN: This included the appointment of a So if you see something you don’t woman deputy in the Traditional Council like, speak up. Everyone now, watch YOU WOMEN HAVE to preside over its meetings in the carefully. Stand up and speak if you BEEN NEGLECTED! absence of the Chief. According to one think something is not right or if you headman in Onamega District, “the don’t understand something” IT’S TIME FOR CHANGE‹ senior headman tells people around him that if they see a woman capable of iii) The Traditional Authority modified a leading, she must be the first choice”. number of customary norms that were detrimental to the position of women and ii) The Traditional Authority formally sought to create broad local awareness Namibia at large. When Namibia opened up traditional dispute settlement of these changes. gained its independence in 1990, the meetings and actively encouraged country experienced a tremendous women’s participation on an equal At the 1993 Customary Law Workshop, momentum for change, including in basis as men. leaders of six Owambo traditional gender relations. Women had played communities came together to draw a prominent role in the period before This was brought about in part as up recommendations to the various independence, both as freedom a result of the 1993 decision of the councils with the aim of harmonizing fighters and in the functioning of the Owambo Traditional Authorities117 to their customary laws. They unanimously rural localities when men were away allow women to participate fully in decided that widows should not be fighting or working on labor contracts the work of community courts. chased from their lands or out of their at white owned farms. The notion of homes, and that they should not be ‘women’s rights’ entered Namibian This resolution, which was subsequently asked to pay for such land again. This politics when women freedom fighters written into Uukwambi’s written decision was subsequently codified in not only expressed their opposition to customary laws, gave momentum the Laws of Uukwambi 1950-1995. This colonial occupation, but also to contrived to a process to involve women more normative change reflected a widely custom and tradition. The collaboration actively in political and judicial decision- felt need among society members to of traditional leaders in indirect making. Following the 1993 decision, enhance the position of widows, both rule of the apartheid government, the Traditional Authority decided that at the local and national levels. These which cost them the respect of the a female representative and advisor measures were subsequently promoted population, was a determining factor had to be selected in each village. It by the Traditional Authority, with the in this articulation. Recent decades was also decided that women were to active involvement of Chief Iipumbu. have seen further progression towards actively participate in traditional court more gender equality. The Constitution meetings.118 At many court meetings Before discussing these changes of the Republic of Namibia, adopted women are now expressly encouraged to and their impact on the people of February 1990, reflected the demand for actively participate in the proceedings. Uukwambi, it is useful to highlight gender parity in guaranteeing equality At one of the senior traditional councils, that the achievements in Uukwambi and freedom from discrimination on the chairman always addresses the were inextricably intertwined with a number of grounds, including sex woman at the beginning of a court change processes occurring in (section 10(2)).
116 The Uukwambi Traditional Authority is divided into five districts, each of which is headed by a senior headman or senior headwoman. Each district contains a number of villages, up to 70, which are headed by their own headman or headwoman. At the village, district and Uukwambi level, leaders are supported by a Council. Chief Iipumbu is the Chairman of the Uukwambi Traditional Council, which comprises the five senior headmen / headwomen, as well as several other traditional councilors. 117 Uukwambi is one of the six traditional communities that constitute the Owambo Traditional Authorities. 118 The new representatives were expected to actively participate in hearings of customary courts and generally act as deputies to the headmen in order to enhance the equal representation and treatment of women in the customary arena.
27 ACCESSING JUSTICE
GENDER EQUALITY ON THE HORIZON: THE CASE OF UUKWAMBI TRADITIONAL AUTHORITY IN NAMIBIA (continued)
Table 1. “My headman/headwoman does his/her job well”
The village leader is The village leader is a woman (n=51) (%) a man (n=101) (%) Strongly agree 23.5 28.7 Agree 56.9 53.5 3 Neutral 7.8 7.9 Results analysis The increased presence and Disagree 11.8 9.9 participation of women leader does not Strongly disagree 0 0 necessarily correlate to positive gender outcomes. For this reason, between Table 2. September 2009 and February 2010 “The relationship between you and your headman/headwoman” data was collected principally through The village leader is The village leader is qualitative data collection methods in a woman (n=54) (%) a man (n=108) (%) three districts of Uukwambi,119 which Very good 33.3 34.3 included semi-structured interviews Good 40.7 40.7 with women, women leaders, traditional Neutral 11.1 10.2 leaders, farmers, government Bad 13.0 13.0 authorities, academics, and the staff Very bad 1.9 1.9 of non-governmental organizations (NGOs). Focus group discussions with women and NGO staff, as well as Table 3. “The senior headman/headwoman does his/her job well” participant observation of traditional court meetings were also conducted Ogongo Ogongo Onamega Onamega Otuwala Otuwala (SHW) (SHW) (SHM) (SHM) (SHM) (SHM) to determine whether justice outcomes Women Men Women Men Women Men have changed with the inclusion of (n=15) (%) (n=17) (%) (n=21) (%) (n=11) (%) (n=41) (%) (n=35) (%) women leaders and participants. In Strongly agree 26.7 17.6 28.6 36.4 31.2 34.3 addition, structured interviews based on a survey were conducted in 216 rural Agree 66.7 76.5 57.1 54.5 56.2 57.1 households to explore issues associated Neutral 0 0 4.8 0 3.1 5.7 with access to, participation in and Disagree 0 5.9 9.5 9.1 9.4 2.9 satisfaction with the customary justice Strongly disagree 6.7 0 0 0 0 0 system. SHW = senior headwoman SHM = senior headman A. Perceptions of female leaders / leadership Currently, one of the five district senior Women appointed to leadership Traditionally in Namibia, traditional councilors in the Traditional Authority positions around the time of leaders (i.e. headperson, senior is a woman. In the three districts of the independence recall a difficult start: councilors or traditional councilors) Traditional Authority where interviews men were reluctant to accept their new were selected from the family of the last were conducted, the proportion of role and largely excluded them from leader.120 Over time it became common women village headpersons range traditional court and village meetings. for a headman to nominate one of his from approximately one out of four This seems to have changed over time: sons or grandsons. Today, the criterion of the villages surveyed (in Onamega headwomen and the senior headwoman of belonging to the same family is no District) and one out of five (in Ogongo who took up their positions more longer decisive, although it is still often District), to a mere one out of 19 recently have not reported any overt preferred if a suitable candidate is (in Otuwala District). Although still resistance. A number of respondents available. heavily outnumbered by headmen, this opined however, that women had a represents a significant change from the restricted scope of operation compared traditional rule of ten years ago. to their male counterparts. For instance,
119 These were Otuwala, Onamega and Ogongo districts. 120 Originally there was a preference for a member of the former headman’s matrilineal family, but it was not uncommon for the son of a traditional leader to succeed his father if no matrilineal family members were deemed eligible.
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while a new headman can select his Table 1b. “My headman/headwoman does his/her job well” own council, a new headwoman must Villages with Villages with select her councilors in consultation headwomen (mean) head man (mean) with male elders. Men 2.05 1.78 In the survey, several questions were Women 2.10 2.11 asked regarding the performance Total 2.08 1.99 of men and woman leaders. The data indicated that a large majority Table 3b. “My headman/headwoman does his/her job well” of respondents believed that their headwoman was doing her job well, with Otuwala district Otuwala district Ogongo district (SHM) (mean) (SHW) (mean) (SHW) (mean) no significant difference between male and female respondents. There was a Men 1.77 1.82 1.94 slight, but insignificant difference in Women 2.07 1.95 1.93 how the performance of headmen was Total 1.94 1.91 1.94 regarded (Table 1). In the same vein, respondents in villages with female leaders described the relationship with The interviews highlighted that the to be fair and honest (mentioned by 80 their village leader almost identically shift in mindset required for women to respondents); he/she needed to listen to respondents in villages with male occupy a fully equal role in traditional to and solve problems (49 respondents); leaders (Table 2). Here also, the gender leadership functions is not nearly he/she needed to treat people equally of the respondents did not account complete. Many headmen still saw (41 respondents); he/she needed to be for a substantial deviation in opinion. their sons as the preferred candidate strong and powerful (39 respondents); The statistical data regarding the to succeed them, and their daughters and he/she needed to be educated and senior headmen/women reveal similar as substitutes if sons were absent intelligent (33 respondents). opinions: leaders of both sexes were or unsuitable. They often referred to assessed similarly and received strong tradition as the reason for this opinion. When respondents were then asked support from men as well as women Others also favored a male leader, whether men and women have these (Table 3). either pointing to tradition or to what above character traits in equal measure, they considered character traits of men a large minority of the women and more One interesting finding from the survey and women. The latter provides an than half of the men answered that data is that, while men and women insight into the characteristics deemed men possessed these qualities in larger assessed headwomen more or less important for traditional leaders, and measure than women (Table 4). This is similarly, and that this assessment in the interviews, these centered on the consistent with the recorded preferences did not substantially differ from dichotomies patient/impatient, forgiving/ for male or female leadership. Headmen women’s assessments of headmen, resentful, active/lazy, and powerful/ were preferred over headwomen by a these same headmen were assessed weak. In the survey, the respondents majority of the male respondents, as significantly more positively by male listed the following character traits of a well as a large minority of the female respondents (Table 1b). With regard to good headman/woman: he/she needed respondents (Table 5). senior traditional leaders, the senior headwoman and the senior headman of Onamega District were assessed almost identically by male and female Table 4. “Do women and men have the necessary qualities for leadership in equal measure?” respondents. Only Otuwala District Women (n=89) (%) Men (n=66) (%) Total (n=155) (%) showed a significant difference between Yes 41.6 36.4 39.4 male and female respondents, again No, men more 40.4 53 45.8 indicating that men assessed their male leader more positively than women did No, women more 15.7 9.1 12.9 (Table 3b). Do not know 2.2 1.5 1.9
29 ACCESSING JUSTICE
GENDER EQUALITY ON THE HORIZON: THE CASE OF UUKWAMBI TRADITIONAL AUTHORITY IN NAMIBIA (continued)
Table 5. “If you could vote for a new traditional leader in your village, B. Changed perceptions of quality would you prefer a headman or a headwoman?” and fairness of traditional courts Women (n=92) (%) Men (n=66) (%) Total (n=158) (%) Customary courts in Uukwambi play a major role in the resolution of local Headman 37.0 57.6 45.6 disputes. Dispute settlement is by Headwoman 26.1 7.6 18.4 far the most time-consuming task of No preference 37 34.8 36.1 traditional leaders in Namibia. During the colonial period women were largely Table 6. “It would be good if more traditional leaders were women” excluded from active participation in the Women (n=90) (%) Men (n=67) (%) traditional judicial arena. Today, both men and women are free to participate Strongly agree 12.2 3.0 and women do so to a large extent.121 Agree 31.1 20.9 This subsection considers whether Neutral 7.8 16.4 opening up of traditional courts has Disagree 47.8 44.8 resulted in a positive perception of Strongly disagree 1.1 14.9 women and their role in the courts and Mean 2.94 3.48 whether such perceptions are influenced by the gender of the traditional leader in In a similar vein, only 21 percent of male › the respondent’s village. respondents and 43 percent of female JUST OVER HALF respondents supported the statement When discussing perceptions of the that more traditional leaders should be OF RESPONDENTS traditional courts, it is important to women (Table 6). The answers to the EXPRESSED SATISFACTION highlight that approximately two-thirds statement “Men generally make better of the respondents had never attended a leaders than women” similarly show WITH TRADITIONAL traditional court meeting in their village. that men were still regarded as the COURT PERFORMANCE‹ Thirty-two percent of the respondents most suitable leaders (Table 7). had participated in court meetings, but only 8 percent reported to have attended With regard to the latter two statements, “many times” or “almost always”. “It would be good if more traditional Traditional court meetings therefore leaders were women” and “Men When aggregating the data discussed do not engage the majority of the generally make better leaders than above, two patterns become visible. adult population of a village. women”, the gender of the respondents First, in villages led by a headman, accounts for a substantial deviation male respondents had a significantly The 51 respondents who answered in opinion. When the gender of the more negative view of female leadership that they had attended court meetings village leader was taken into account, than female respondents, a difference showed high satisfaction with traditional the data show that male respondents that was not found or was considerably court performance: only 18 percent living in villages led by a headman were less than in villages with headwomen. reported a need to improve the significantly more negative towards Second, male respondents showed a performance of traditional courts. Male increased women’s leadership than more positive general attitude towards respondents reported a slightly higher the female respondents in the same female leadership in abstracto when need to improve the performance of villages, and more negative than male living in a village led by a woman traditional courts led by headwomen, respondents in villages headed by compared to males living in a village led compared to those led by headmen. women. Similarly, with regard to the by a man. The latter indicates that men’s Female respondents, on the other statement “Men generally make better opinions about gendered leadership — hand, were more negative about the leaders than women”, both male and whether based on traditional values or performance of traditional courts female respondents in villages headed preconceived opinions regarding the led by headmen than those led by by women indicated significantly lower character traits of men and women — headwomen. agreement to this statement than undergo significant change as a respondents, and in particular male result of exposure to successful respondents, in villages headed by men. female leadership.
121 This should, however, be understood within the context of the high out-migration which characterizes the rural areas of northern Namibia. This phenomenon, caused by the poor economic situation in rural areas, has resulted in a high percentage of women-headed houses.
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When these same respondents were Table 7. “Men generally make better leaders than women” asked whether they felt they could Women (n=92) (%) Men (n=67) (%) Total (n=159) (%) actively participate in proceedings, 72 percent of female respondents and 92 Strongly agree (1) 27.2 41.8 33.3 percent of male respondents answered Agree (2) 17.4 20.9 18.9 positively, and 28 percent of female Neutral (3) 3.3 1.5 2.5 respondents felt that they could not Disagree (4) 42.4 25.4 35.2 actively participate. Notably, women Srongly disagree (5) 9.8 10.4 10.1 were more positive about participation Mean 2.90 2.42 2.68 in villages led by headwomen than by headmen (Table 10). Table 10. “Do you feel that you can actively participate in traditional court proceedings?”
When confronted with the question of Women (n=25) (%) Men (n=25) (%) whether men or women were more Villages with head woman influential in the traditional court in Yes 5 (83.3%) 10 (100%) their village, 56 percent of female No 1 (16.7%) 0 respondents and 60 percent of male Dont Know 0 0 respondents believed that power Villages with head woman was equally divided, with most of the Yes 13 (68.4%) 13 (87.7%) others claiming that men enjoyed more No 6 (31.6%) 0 power than women. Opinions of male respondents did not differ with the Dont Know 0 2 (13.3%) gender of the village leader; however, N=51, missing=1 female respondents believed that there was more equal power sharing in Table 11. “In the traditional court in your village, who do you think are more influential, villages with headwomen (Table 11). men or women?” Villages with headwoman (%) Villages with headmen (%) When all respondents — including those Women who had never attended a traditional Men 1 (16.7) 7 (36.8) court meeting — were asked their Women 0 0 opinion about the statement, “Men and Equal 5 (83.3) 9 (47.4) women are treated equally in traditional Don’t know 0 3 (15.8) courts”, only nine percent did not agree. Men Both male and female respondents Men 3 (30) 4 (26.7) were slightly more positive about this statement where the traditional courts Women 1 (10) 1 (6.7) were headed by women as opposed Equal 6 (60) 9 (60) to men. Similarly, only six percent Don’t know 0 1 (6.7) of respondents disagreed/strongly N=51, missing=1 disagreed with the statement “In the traditional court, women and men have had attended a traditional court, 80 there was a marked difference an equal chance to get a fair decision or percent of the male respondents and between respondents in villages with a settlement”. 68 percent of the female respondents headwoman and those with a headman. disagreed or strongly disagreed with Female respondents were significantly Almost half of all respondents stated the statement; 28 percent of the female more positive about traditional court that they found it difficult to speak up respondents strongly agreed, compared proceedings in female-headed villages, and give their opinion at a traditional to 4 percent of the male respondents. in terms of overall satisfaction, ability court meeting. These data show a Further, the data indicate that male to participate in the proceedings and significant difference between men and respondents found it easier to speak up the equal division of power among the women (women reporting more difficulty in traditional courts in villages led by sexes. Male respondents were slightly than men). When disaggregated by women compared to those led by men. more positive about traditional courts in court attendance, the data indicate male-headed villages, but indicated that that respondents who had never In summary, respondents generally they spoke up more easily in courts in attended a traditional court felt that it perceived the treatment of men and female-headed villages. was much more difficult to speak up women by the traditional courts as than did respondents with actual court equal, as well as their chances of experience. Of those respondents who receiving a fair decision. Critically,
31 ACCESSING JUSTICE
GENDER EQUALITY ON THE HORIZON: THE CASE OF UUKWAMBI TRADITIONAL AUTHORITY IN NAMIBIA (continued)
C. Change in justice Property grabbing and payments by outcomes for women? widows to headmen to retain land The semi-structured interviews were first outlawed in the written Laws conducted in the case study indicated of Uukwambi 1950-1995 and later that the changed norms had become in statutory law. During interviews, widely known and enforced in the both customary law and statutory law 4 Traditional Authority. Many people were referred to as sources of the Conclusion were familiar with the new rules, new norm, and both the Traditional A number of interesting observations and it was generally stated that there Authority and the Government were concerning legal empowerment projects was a drop in the number of cases of perceived as the enforcing agencies. aimed at the customary justice sector property grabbing, both in traditional It is difficult to clearly deduce which might be drawn from this study. courts and at the Communal Land regulatory system has contributed Boards (CLBs). Widespread awareness most to the awareness of these First, it is important to increase was corroborated through the survey norms. On the one hand, the data of participation of women in leadership data, which showed that of the 162 the CLBs show that these institutions roles. Having women in visible respondents in Uukwambi, 82 percent still received many property grabbing leadership positions has a positive were aware of the norm prohibiting cases in 2003-2006 and then saw a impact for improving both women property grabbing and 81 percent of gradual decline from this period to the and men’s views on the capabilities of the norm prohibiting payment to the present date, where there have been women as community leaders and in headman/woman by the widow. Of the few cases. This coincides with the improving justice outcomes for women. 132 respondents who were aware of the introduction of the Communal Land norm prohibiting property grabbing, 92 Reform Act 2002 (the Act), rather than Second, increasing the presence percent stated that they were unaware with the abolishment of the customary of women in court proceedings of any case of property grabbing in their norm by the Owambo Traditional and encouraging them to take village in the past three years, compared Authorities in 1993. an active role, for example as to 8 percent who had heard of such a participants as witnesses, leaders, case. These figures are particularly On the other hand, the quantitative data or as representatives can positively striking when compared to another show that 21 percent of respondents affect women’s feelings about the research project carried out in 1992- who were aware of the norm attributed performance of the traditional 1993 in Uukwambi. In this research, its basis to statutory law, with 5 court system. when asked about property and percent specifically referring to the inheritance in a customary marriage, 51 Act; 64 percent referred to customary percent of the 600 female respondents law as the source; 14 percent did not answered that they were convinced that know. A further important point is that on the death of their husbands, all of respondents often noted that when the belongings of the husband would both parents die, the inheriting child is be transferred to his family. This was not exempted from making a payment despite that when they were asked to the headman to retain the land. whether they agreed or disagreed with The fact that this practice contravenes the statement “The husband’s family the Act but not the written Laws of ›IN NORTHERN NAMIBIA should inherit all the property when the Uukwambi 1950-1995 suggests that husband dies”, 96 percent disagreed, knowledge of the content of the Act is at NEW ‘TRADITIONAL’ WOMEN and when asked whether “Women best incomplete and that awareness of should be allowed to inherit land without statutory norms may be stronger when LEADERS ENJOY CROSS- having to pay”, 97 percent agreed. they reflect customary norms. GENDER SUPPORT‹
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Third, active promotion and support by village chiefs on new cultural norms is essential in increasing awareness of rights. Codifying developing customary norms, for example by abolishing property grabbing, reflects the changes in the traditional views, can raise awareness for these new cultural norms that are promulgated at the village level.
Overall, the actions taken by the leadership to introduce gender equality into the customary system in the Traditional Authority appear to have enhanced the fairness and equity of traditional rule and the customary dispute settlement process for women, and thus present a successful approach to women’s legal empowerment.
It is important to note three factors in the Uukwambi case study that set it apart from many other attempts to enhance the position of women regulated by customary law in Africa:
› The simultaneous change undertaken Image: eGuide Travel in all three domains of traditional rule – leadership, dispute settlement, and normative content of customary norms. These three domains are interconnected in such a way as to suggest that any effort to promote normative change needs to be holistic. › The complementarity of local, regional Key lessons that may be useful for legal empowerment programming: and national efforts. For instance, the (i) It is important to increase participation of women in leadership roles. Having women in visible change processes in Uukwambi were leadership positions has a positive impact for improving both women and men’s views on the part of a broader effort in Owambo to capabilities of women as community leaders and in improving justice outcomes for women. harmonize customary laws and align them with the new Constitution. This (ii) Increasing the presence of women in court proceedings and encouraging them to take an harmonization process was encouraged, active role can positively affect women’s feelings about the performance of the traditional legitimated and, at least in part, driven court system. by the Namibian Government.122 (iii) Active promotion and support by village chiefs of new cultural norms is essential › The momentum for change in Namibia to increase awareness of rights. following its independence.123
122 The Owambi Traditional Authorities, in their bid to assert their relevance in independent Namibia, took heed of the government’s ‘suggestions’ for reform. The decisions made by the Owambo Traditional Authorities in turn legitimized change processes in Uukwambi. The active engagement of the Uukwambi and the personal involvement of Chief Iipumbu greatly influenced the success and vigor of the reforms. 123 See the discussion at the introduction and intervention description in this case study.
33 ACCESSING JUSTICE
BUSH JUSTICE IN BOUGAINVILLE: MEDIATING CHANGE BY CHALLENGING THE CUSTODIANSHIP OF CUSTOM124
›FOR MELANESIAN WOMEN, EMPOWERMENT IS COMPATIBLE WITH 1 ‹ 2 Introduction CUSTOM The intervention During the period of civil conflict It is against this backdrop that the in Bougainville (1989-1998), the Bougainville Centre for Peace and formal justice system was essentially Reconciliation (PFM)125 started to inoperative, leaving the population conduct grassroots training on non- with few tools to manage conflicts violent dispute resolution. In 1994, in and stem escalating violence. Since an effort to address some of the social the new Bougainville Constitution consequences of the Bougainville and Autonomous Government was to dealing with such complaints, there conflict, the Bougainville Interim created in 2005, central authorities are few opportunities for women to Government invited PFM to conduct have been slowly building their capacity participate in the hearing or resolution a conflict resolution training session and legitimacy, but continue to rely of their grievance, and the penalties are focused on mediation. heavily on civil society and customary normally mild and unduly exonerate institutions to maintain peace, order, perpetrators. Participants immediately recognized the and security. commonalities between PFM dispute Despite the challenges faced by resolution techniques and customary In Melanesia, gender-based violence women in accessing justice through approaches to conflict resolution and prejudices against women the customary fora, research in that emphasized values such as the are severe and widespread. Some Melanesia has shown that women preservation of community relationships customary norms tolerate it. For largely support localized systems, even and consensus-based decision-making. example, in most Melanesian if they feel that some aspects should communities, violence against women change to become fairer to them. For Participants and local actors requested is not seen as a serious issue worthy these women, empowerment does not additional training, which led to the of community-level adjudication. Rape require a rejection of custom, but a re- development in cooperation with is conceptualized more in terms of examination of norms and processes so local chiefs of a training methodology damage to a woman’s reputation, that they support, rather than victimize considered congruent with Bougainville potential marriage prospects and dowry women. While this is the preferred customary principles and practices. implications than as a criminal act solution, challenges arise in devising or a violation of basic human rights. a methodology that is appropriate to The PFM training course targeted a Where customary systems are open serve this objective. cross-section of community members
124 The full text of this case study, including references, is found in N Johnstone, ‘Bush justice in Bougainville: Mediating Change by Challenging the Custodianship of Customs’ in E Harper (ed), Working with Customary Justice Systems: Post-Conflict and Fragile States IDLO (2011) 15-33. 125 PFM was formerly called the People and Community Empowerment Foundation Melanesia (PEACE).
34 IDLO
including chiefs, women, youth, civil society leaders and church leaders of different denominations. The main objective was to build conflict resolution skills in local communities, and thus promote intra- and inter- 3 community social harmony and local Results analysis ownership over justice processes. The In May 2010, field research was “empowerment of women as equal conducted in Bougainville in order to partners” was a recurrent message in understand the impact of the PFM many training modules. intervention. The research aimed to assess specifically whether and to The training aimed to equip women what extent the intervention was able with the information and skills to apply legal empowerment strategies necessary to assert themselves and in a way that was locally perceived to speak up among men and chiefs, be legitimate and that preserved the while promoting a community-wide positive aspects of customary justice appreciation of women’s rights and process. Using a subject-centric contributions. A related goal was methodology, a survey was developed to facilitate greater participation in that included indicators designed to: decision-making by other members of Image: djringer the community, including women and › Measure users’ perceptions of the vulnerable groups, so that outcomes quality of justice in terms of process differences. This was supplemented by would represent their perspectives and outcome; qualitative data from 25 interviews with as well. The modalities of the training › Test the impact of the intervention female members of civil society, the were structured accordingly. on perceived positive aspects of parties to disputes, mediators, as well the customary system, such as the as trained and untrained chiefs. By bringing men and women together restoration of relationships and community into small working groups – a situation harmony; and A. Participation and Satisfaction that pushed cultural boundaries - › Test whether the intervention resulted in An examination of the survey and women were given a forum to try out changes in attitude towards women and interview data suggests that PFM their skills as mediators and decision- power-sharing in dispute resolution. training made a positive difference to makers, while chiefs and other men the satisfaction of parties to disputes were compelled to observe them in The survey was administered to 394 and led to an increased participation these roles. This facilitative space was people in Bougainville communities by disputants. Table 1 illustrates that tightly controlled through established where PFM training had taken place. over 84 percent of the 146 respondents guidelines on issues such as mutual The responses of individuals who had whose disputes were mediated by a respect, which were communicated at resolved a dispute through a customary party with PFM training agreed that: the beginning of training and monitored mediator and who had participated by the facilitator. in PFM training were compared to › They were encouraged to responses from individuals whose express their views; disputes were resolved by a customary › They were satisfied with the mediator who had not participated in dispute resolution process; PFM training. › They participated fully in the dispute resolution process; As noted above, the research was › They were satisfied with the directed toward gauging the impact mediator or chief; of the intervention for women’s legal › Their views were considered during empowerment. Accordingly, each the dispute resolution process; and area of quantitative investigation › They experienced healing through was statistically tested for gender the dispute resolution process.
35 ACCESSING JUSTICE
BUSH JUSTICE IN BOUGAINVILLE: MEDIATING CHANGE BY CHALLENGING THE CUSTODIANSHIP OF CUSTOM (continued)
Respondents whose mediator did not Table 1. Survey findings on users’ experience of the dispute resolution process participate in PFM training agreed Survey Statement Dispute was handled by: Respondent with these statements only 50 to 70 Trained 3rd Untrained Men (n=103) Women (n=128) percent of the time. There was also a Party (n = 146) Chief (n=85) significant difference when these data Percentage of participants who agreed with the statement were disaggregated and analyzed by I was encouraged to 98** 65** gender. Male respondents were more express my views likely than female respondents to have I was satisfied with 91** 54** been satisfied with and participated the mediator/chief in the dispute resolution process. An I participated fully 94** 55** 81* 66* additional finding was the positive effect in the process that training appeared to have on the I participated fully 97** 61** 89* 79* disputants’ relationships. However, the in the process difference between the two groups was My views were considered 89** 55* less than other findings: 78 percent of during the process those whose dispute was resolved by I experienced healing 85** 58** an untrained chief also agreed that the through the process process improved their relationships. The process had a positive 86* 78* impact on my relationships B. Rights, power and bias *Statistically significant difference at p<.05 Table 2 illustrates that 75 percent of **Statistically significant difference at p<.01 respondents whose mediator received PFM training and 52 percent of Total sample size: n=231 respondents whose mediator did not receive PFM training had their legal Table 2. Survey findings for users’ perceptions of the dispute resolution process rights explained to them. The gender of Survey Statement Dispute was handled by: Respondent the disputants also seemed to have an Trained 3rd Untrained Men (n=103) Women (n=128) impact on whether their rights would Party (n = 146) Chief be communicated to them; men were Percentage of participants who agreed with the statement more likely (regardless whether their My legal rights were 75** 52** 72* 62* mediator was trained or untrained) to explained to me have their legal rights explained to them I was confused about what 25 21 than women (72 percent and 62 percent, my legal rights were respectively). The process was objective 90** 42** 80* 66* and unbiased Anecdotal evidence suggests that, It was hard to express my 32 39 28* 39* although statutory legal rights relating perspective because I was to gender equality were not part of the not as powerful as the PFM training, participants retained other parties involved some knowledge of women’s rights as *Statistically significant difference at p<.05 articulated in the Constitution, as well **Statistically significant difference at p<.01 as women’s decision-making rights Total sample size: n=231 in relation to land and land-related resources. women. view because of power asymmetries Table 2 shows that 90 percent of A further topic examined in the survey between the parties involved (39 and 28 respondents whose mediator received was how power dynamics impacted the percent, respectively). This finding was PFM training agreed that the dispute resolution of disputes. Approximately 35 supported by interviews with trained resolution process was objective percent of all disputants found it difficult mediators and untrained chiefs, most and unbiased. Only 42 percent of to express their perspective because of whom had very little awareness respondents whose mediator did not they felt that they were not as powerful or understanding of how power receive PFM training agreed. Again, as the other party involved. Whether asymmetries impact dispute resolution, perceptions of bias were affected by the third party had received training nor practical techniques to ameliorate gender: regardless of whether their or not made no significant difference. such imbalances within the context mediator was trained or untrained, However, female disputants overall of a dispute. Notably for all of the 80 percent of men agreed with the were significantly more likely than male process-related survey statements, no statement compared to 66 percent of disputants to find it hard to express their correlation was found between training
36 IDLO
›LEGAL EMPOWERMENT Table 3. Survey findings on users’ perception of the dispute resolution outcome Survey Statement Dispute was handled by: Respondent TRAINING MEANS Trained 3rd Untrained Men (n=103) Women (n=128) Party (n = 146) Chief WOMEN DEMAND Percentage of participants who agreed with the statement MORE EQUALITY‹ The outcome restored 86** 76** community harmony The needs of the 75* 67* community were considered in the outcome My individual needs were 69** 49** considered in the outcome The outcome enabled me 88** 64** 86* 73* and gender, that is, the intervention to move forward with my life did not improve or make worse the The outcome restored my 88** 59** 85** 70** gap between men’s and women’s emotional harmony perceptions of the dispute resolution I received an explanation 84** 52** 82** 64** process. Indeed, the PFM training for the outcome improved the satisfaction levels of both I was satisfied with 85** 60** 86** 68** women and men, but in those areas the outcome where there were differences in men’s *Statistically significant difference at p<.05 and women’s responses, the impact of **Statistically significant difference at p<.01 training on this gender gap was neutral. Total sample size: n=231 C. Outcome satisfaction The second part of the survey focused Figure 1. Survey findings on the effect of training and gender on whether an outcome was reached on the result of the dispute resolution process, namely user satisfaction and Outcome No outcome Outcome No outcome perceptions relating to the outcome Total Total (Table 3) and whether an outcome was reached or the dispute remained 110 27 137 77 47 124 unresolved (Figure 1). (80%) (20%) (100%) (62%) (38%) (100%) Women Trained Third Party Third Figure 1 demonstrates that disputants whose mediator participated in PFM training were more likely to obtain an 45 33 78 84 20 104 outcome than those whose mediator
(58%) (42%) (100%) Men (81%) (19%) (100%) did not (80 percent and 58 percent Chief Untrained respectively). Once again, men fared better overall than women (whether 155 60 215 161 67 228 their mediator received training or not); (72%) (28%) (100%) (71%) (29%) (100%) 81 percent of men obtained an outcome to their dispute compared to only 62 percent of women. › The outcome restored their significantly higher (between 84 and 88 emotional harm; percent). Women were less likely than The research also analyzed how › They received an explanation men to agree with these statements, satisfactory these outcomes were, the for the outcome; showing that they were less satisfied impact of the outcome and what factors › The outcome enabled them to with the outcome and its impact. As were taken into consideration. move forward with their lives; and with the process-related results, the › They were generally satisfied intervention was found to have a neutral With respect to the overall satisfaction with the outcome. affect on the gap between how men with the outcome and the process’ and women perceived the outcome of restorative aspects, PFM training For parties to disputes whose mediator the dispute resolution process. Overall seemed to have significant positive was not PFM-trained, the results for though, the research showed that impact. Between 84 and 89 percent of these four statements were all between fairness was often perceived in terms of disputants whose mediator was PFM 52 and 64 percent; for those with a procedure and participation, rather trained agreed that: trained mediator, the results were than outcome.
37 ACCESSING JUSTICE
BUSH JUSTICE IN BOUGAINVILLE: MEDIATING CHANGE BY CHALLENGING THE CUSTODIANSHIP OF CUSTOM (continued)
The final element of the survey sought of gender-based power imbalances, to compare the attitudes of respondents and used tools to address them. For ›FEMALE JUSTICE who had participated in the PFM example, female mediators were more community training on dispute resolution likely to refer a case to the formal justice MEDIATORS ARE NOW (178), compared to respondents who had before arranging a meeting where both WELL ESTABLISHED not participated (216). parties would have to meet face-to-face. IN BOUGAINVILLE Respondents who had participated Female mediators interviewed were ‹ in the PFM training demonstrated also overall more likely to recognize COMMUNITIES extremely high levels of agreement substantive legal rights, especially in with the statements “men and women relation to violence against women, and should have equal opportunities to had little hesitation drawing normative participate in dispute resolution” and “it and legal boundaries in regard to is important for women to participate acceptable decision-making by the in dispute resolution” (98 and 92 parties involved. They were also more percent, respectively), compared to inclined to refer cases to the formal respondents who did not benefit from justice system where they believed that the PFM training (76 and 72 percent, they could not guarantee an equitable respectively). outcome for the victim and, almost exclusively, would prohibit a solution Anecdotal evidence collected through that involved a victim marrying her rapist. › The second key issue to highlight is that interviews revealed that the community the PFM training did not adequately training had dramatically changed Similarly, in cases of domestic violence, address how these power asymmetries the way that some men thought about the approach of female mediators affected the capacity of the disputing women. One community chief stated differed from male mediators and parties to assert their opinions or legal that the training had helped him realize untrained chiefs. Women mediators rights. Although it was more likely that a that women play a major role in the would threaten the perpetrator with disputant with a PFM-trained mediator household and community, that they action at the state court if the violence would participate more fully, they were also have rights and are important, and did not stop and simultaneously informed often under significant pressure to that they are capable of accomplishing the victim of her right to refer the case agree to outcomes that reflected certain things. Others came to realize that to court and explained how to do so. notions of fairness. Such understanding they should listen more to women’s They would also counsel women victims often favored more powerful parties, perspectives and opinions and that men of domestic violence on their options including men, leaving less powerful often quash women’s rights. Fifty- should they decide to change their parties vulnerable to having their three percent of respondents who did situation, including by providing referrals legitimate grievances ignored or being not participate in the PFM training felt to NGOs that offered support to them and pressured into accepting solutions that domestic violence was a private arranging for trauma counseling. they found unsatisfactory. This was issue, compared to 22 percent of most apparent when numerous power trained respondents. Similarly, while Overall the survey results indicated asymmetries were in play, such as in only 18 percent of trained respondents that the PFM training greatly improved cases of gender-based violence. believed that dispute resolution was the women’s participation. Increased exclusive domain of community chiefs, participation, however, proved insufficient › The third consideration in this discussion approximately 33 percent of untrained to fully promote legal empowerment in on participation and rights is neutrality. respondents believed this to be true. the absence of a sound understanding Interviews revealed that there was of substantive rights and the capacity widespread misunderstanding among Interviews revealed that women to uphold them. Three considerations mediators about the meaning of mediators dealt with issues relating emerge from the study: neutrality. Many interpreted this as not to gender, particularly gender- requiring the application of any legal or based violence, in different and more › First, in a context of generalized gender normative boundary in the resolution of empowering ways than most male discrimination, negotiated settlements the dispute, but instead to aim primarily mediators and chiefs, indicating the and minimal recognition of legal rights for a mutually acceptable solution. For importance of women’s participation in present particular risks for female example, cases were found where a the justice section in improving justice parties to disputes. This risk is increased mediator ‘resolving’ a rape case did not outcomes for women. Women mediators by various kinds of power asymmetries feel able to condemn a decision where tended to have a greater awareness within a dispute. the victim was forced to marry the perpetrator, provided that both parties were (at least ostensibly) in agreement.
38 IDLO
focuses on women’s participation in The intervention also revealed the customary legal settings to advance limits of a legal empowerment program women’s empowerment. It suggests that i) focuses only on process rather that interventions that encourage than substantive rights and ii) that local discourse on challenging ideas does not address power asymmetries. 4 and that are structured around locally Focusing on process rather than Conclusion legitimate change processes can have substantive content meant the PFM Many argue that the failure of progressive results. The results of the intervention was regarded as locally Pacific customary legal systems to PFM intervention indicate that female owned and compatible with customary protect women from violence marks mediators were slowly but successfully values. However, it also meant that the a significant departure from the challenging the interpretation and intervention had no impact on the gap past.126 They state that protective application of customary legal norms between men and women’s perceptions norms have been eroded through so as to offer greater protection to of the dispute resolution process. processes of colonization and conflict, women. These mediators appeared to As such, the PFM intervention is an which contributed to a breakdown of be largely accepted and supported by important reminder that the kinds customary mechanisms.127 These critics trained male mediators and chiefs, both of broad and deep issues that legal advocate challenging the dominant of whom expressed a desire for more empowerment efforts seek to address male interpretations of custom by female mediators. This is surprising are not prone to quick or simple fixes, evoking traditional practices where given the experiences of other countries particularly those relating to power women had equal status, their own where moves to displace traditional differences between parties. But ceremonies and leadership roles.128 power-holders, and more generally by learning from each attempt and A related approach is to encourage a to challenge men’s interpretations remaining flexible and reflexive, any review of customary practices in light and application of custom have been change that does occur is more likely of underlying customary values. Where strongly resisted.130 to be sustainable. such values align with substantive or procedural human rights, they may be weaved into the cultural and customary law fabric, and hence “introduced in ways that are relevant to Pacific peoples Key lessons that may be useful for legal empowerment programming: and legitimate in terms of the peoples’ 129 (i) Interventions that encourage local discourse on challenging ideas and that are structured own norms”. around locally legitimate change processes can have progressive results.
The PFM intervention highlights some (ii) The broad and deep issues that legal empowerment efforts seek to address are not of the key challenges and opportunities prone to quick or simple fixes, particularly those relating to power. associated with an approach that
126 P Martin, ‘Implementing women’s and children’s rights: the case of domestic violence in Samoa’ (2002) 27 Alternative Law Journal 240: L Behrendt ‘Human Rights Trump Customary Law Every Time’ (2006) National Indigenous Times, 75, cited in Johnstone, above n 124, 18. 127 Johnstone, above n 124, 18. 128 G J Zorn, Women, Custom and International Law in the Pacific (2000) cited in Johnstone, above n 124, 19. 129 New Zealand Law Commission, Custom and Human Rights in the Pacific (2006) 12 cited in Johnstone, above n 124, 18. 130 Two factors are tentatively posited as an explanation for the lack of resistance in the Bougainville context. First, the PFM training engaged a broad range of stakeholders, including men, women, youth, religious actors and chiefs. This approach may have facilitated changes in attitude towards the contribution and roles of women. Second, due to the specific circumstances of Bougainville — the impact of colonization, copper mining and the civil conflict — traditional power structures were already in upheaval. When PFM commenced their training program, chiefs had lost their previously strong power base, which is likely to have contributed to them being supportive or at least open to women and other community members becoming decision-makers. This state of uncertain power dynamics may be present elsewhere during transitional periods, providing opportunities and space for legal empowerment outcomes.
39 ACCESSING JUSTICE
ENGAGING WITH CUSTOMARY LAW TO CREATE SCOPE FOR REALIZING WOMEN’S FORMALLY PROTECTED LAND RIGHTS IN RWANDA131
The extent to which claims could be › realized and the relationship between LAWS FOR WOMEN ARE claims to the same land depended on GOOD IN RWANDA, BUT a process of negotiation within families and communities in which needs and THE REALITY IS LESS SO‹ 1 circumstances played an important role. Introduction Codifications and other law reforms Given the importance of land, both during and after colonialism — often one of her brothers. When land is used in terms of rural development and inspired by concepts in Western law and controlled by a brother, that brother securing livelihoods, much of the debate — combined with population pressure then assumes a moral obligation to on the role that customary law can play and changing economic circumstances, pay visits to his sister on important in the legal empowerment of the poor modified the nature of these claims and occasions and to support her in times in Africa has focused on customary the extent to which women could rely of financial or material need. If the land land rights. This raises the question to on them to gain access to land. While comes from elsewhere, such control what extent it is possible to increase some studies maintain that women were will be exercised by her husband. the scope for acceptance of women’s positively affected by these changes,132 Frequently, the rights acquired over land claims under customary law by the weight of the evidence suggests that gifted land are therefore symbolic in promoting more inclusive dispute such processes adversely affected their nature. In principle, a woman’s children resolution, including participation by ability to exercise derived and residual are not entitled to inherit her rights over women’s interest groups. Is it possible land claims.133 As a result, women gifted parcels of land. for women to capitalize on the inherent face significant challenges where land flexibility in customary decision making ownership, transfer and management When a woman’s husband dies, the to draw on moral obligations that are principally regulated by customary division of matrimonial property support their interest in land? law, and statutory laws protecting their depends on whether she has male land interests remain largely out of offspring, her age and her relationship In terms of substantive norms reach. with her in-laws. Where the son/s pertaining to property rights, in are minors, the widow can generally Rwanda, as in other African systems The primary means for women to access retain rights of use over her husband’s of customary law, women generally land under customary law in Rwanda is land and will continue to stay in the claim access to land on the basis of through marriage. Even in such cases, matrimonial home, holding both in trust their relationships with men. Wives however, the husband is generally for her son/s. If she is young enough, can claim access to their husband’s recognized as owning and exercising she may be required to marry one of her land and, often, they will have one or authority over such land, even if he is former husband’s brothers to reinforce more forms of residual claims to their expected to consult his wife on matters familial ties. In other cases, widows may biological family’s land. This creates regarding its management. Women may be forced to leave their husband’s land multiple overlapping claims to the also be gifted land, but that can also be and return to their biological families. same land. As far as the pre-colonial complicated. Where the land is gifted by This may pose difficulties because she period is concerned, these claims her family, control over the land (selling, will need to lay claim on resources that should not be understood to have been gifting, renting, building, etc.) will have been allocated to her own brothers structured or well-defined rights. generally be exercised by her father or and their families.
131 The full text of this case study, including references, is found in M Lankhorst and M Veldman, ‘Engaging with Customary Law to Create Scope for Realizing Women’s Formally Protected Land Rights in Rwanda’ in E Harper (ed), Working with Customary Justice Systems: Post-Conflict and Fragile States IDLO (2011) 93-107. 132 See J Pottier, ‘Customary Land Tenure in Sub-Saharan Africa Today: Meanings and Contexts in C Huggins and J Clover (eds), From the Ground Up: Land Rights, Conflict and Peace in Sub-Saharan Africa (2005) 55, 61 cited in Lankhorst and Veldman ibid, 94. 133 A Whitehead and D Tsikata, ‘Policy Discourses on Women’s Land Rights in Sub-Saharan Africa: The Implications of the Re-turn to the Customary’ (January and April 2003) 3(1-2) Journal of Agrarian Change, 67, cited in Lankhorst and Veldman, ibid.
40 IDLO
In terms of process, land disputes adversarial decision. It is then open to ground, however. While there is a basic are often referred first to the inama the parties to the dispute to submit the awareness among most men and y’umuryanga (inama), roughly decision to a Primary Court for review. women that the law has changed in translated as ‘a family meeting’. favor of the latter, in practice customary The inama is not a tightly regulated Statutory reform relating to inheritance law continues to have a strong influence institution of customary law.134 was initiated in 1996. This was driven on how marriage and inheritance are Sometimes women take an active by a number of developments related regulated in rural areas. In particular, if part in the debates whereas in some to the violence against the Tutsi that daughters are allocated an inheritance families, the discussion will be male marks Rwanda’s recent history. The share, brothers and particularly younger dominated. When the inama cannot death or flight into exile of husbands brothers who have not yet married see resolve the dispute, or the dispute is and fathers forced many Tutsi women the share of the land that they will come between members of different families, into roles as family breadwinners and to inherit shrink, which may negatively the dispute will be brought before farmers. The customary system did not affect their marriage prospects. There the umudugudu council (the village meet the needs of this new generation are also social implications for women administration). It is noteworthy that of Rwandan women who were effectively that result from the operation of the there is no law that provides for or running households on their own. new laws. A woman who contributes regulates interventions by these local Moreover, formal laws dating from considerable assets to a marriage authorities. An inyangamugayo, which before the genocide did not recognize is likely to be seen as behaving means man (or woman) of integrity, their claims to the land they depended independently and being les respectful works with heads of the umudugudu on for livelihoods, which made them to her husband because if she were to council in dispute resolution sessions as vulnerable to attempts by more distant divorce, she would not be dependent part of a regular form of cooperation. male relatives to obtain additional on the support of her male family lands. This was viewed as a potential members. It is also clear that women Abunzi committees, composed of 12 threat to political stability and economic risk being ostracized by both men and elected community members are also development. women community members if they important for the resolution of land try to enforce their legally guaranteed disputes. These committees were To remedy this, the Matrimonial inheritance rights. expressly created by a law adopted in Regimes, Liberties and Succession Law 2006 to deal with all disputes before (the Inheritance Law) was introduced The resolution of women’s rights they can be submitted to a Primary in 1999 with the effect of ending or interests in land is often dealt Court and generally deal with disputes important aspects of customary law. with at the abunzi level because the involving women’s rights or interest Firstly, it granted daughters the right umudugudu generally consider them in land. Abunzi committees primarily to inherit land from their parents. Like too complex. Once referred to the mediate between disputants to their male siblings, therefore, women abunzi committees, the dispute is persuade them to reach some kind of are entitled to a share of family land likely to be adjudicated, rather than settlement. The committee’s debate is when they get married or when their mediated. In practice, many abunzi led by three members, two of whom are parents die. Secondly, it gave wives understand their position to be that of chosen by the respective sides of the rights to matrimonial property: land, a judge. Out of a total of 105 disputants dispute and one who is then chosen by houses and movable goods are owned interviewed for this study, 43 indicated the two nominated abunzi. Interventions jointly by husband and wife. Thirdly, it that the abunzi did not make any from other members of the committee allowed widows to inherit their deceased attempt to mediate a decision between vary a great deal between abunzi husbands’ property. the parties and instead just applied committees, with some leaving more a ruling. Most commonly, the abunzi room for discussion than others and The adoption of formal laws have difficulty imagining that a dispute some excluding them altogether. If the guaranteeing women’s access to could be brought to an end without one parties cannot be reconciled, the abunzi marital and biological family land has party admitting fault and asking for must apply the law and adopt a binding not led to significant changes on the forgiveness.
134 The way and frequency in which a family organizes meetings and the reasons for the meeting vary from one family to another. In some families, elders and younger members of the family considered trustworthy, wise and eloquent will be heavily involved in the debates whereas in other families, the umukuru or head of the family, will act alone. It is important to also recognize that there is strong variation in the methods that families adopt to resolve disputes, which range from mediation to strict adjudication.
41 ACCESSING JUSTICE
ENGAGING WITH CUSTOMARY LAW TO CREATE SCOPE FOR REALIZING WOMEN’S FORMALLY PROTECTED LAND RIGHTS IN RWANDA (continued)
As such, the problems for women seeking to protect their land interests in Rwanda are two-fold. First, it is disadvantageous to them that most land-related disputes are not resolved at the umudugudu level because the 2 further away from the village that The intervention dispute resolution takes place, the more With this view in mind, the organization difficult it becomes for them to secure RCN-Justice et Démocratie (RCN), equitable outcomes. This is because selected six villages in the Rulindo outside of the village structure the scope district in northwest Rwanda for an for successful mediation diminishes intervention based on the hypothesis and so does the likelihood that issues that outcomes in cases involving of moral responsibility can be used women’s land interests would improve as a leverage to secure women’s land if they were consistently resolved at the rights. Second, when a dispute is village level, with representatives of the resolved by a head of umudugudu or NWC present. The group of participants an abunzi committee, observations included 20 women (six members of cases indicate that women have of the umudugudu council, eight less probability of upholding their inyangamugayo, five representatives land interests when an adjudicatory of the NWC, and an official of a Image: Sheila McKinnon approach is adopted. Such proceedings higher ranking local authority) and 12 are backwards-looking and focus on men (six inyangamugayo, five heads rights and facts, which in the context of of umudugudu and an official of a ›THERE IS VALUE IN gender- discriminatory customary laws higher-ranking local authority). Multi- does not favor women. stakeholder focus group discussions CHALLENGING MALE were held that addressed three topics: DOMINATION FROM In the Rwandan context, women’s interests are therefore more likely to be › How to better coordinate their WITHIN THE CUSTOMARY better served by mediation approaches efforts to resolve disputes; FRAMEWORK‹ that aim to restore peace between the › How to ensure that all relevant interests disputing parties and where there is and views were taken into account more room to consider issues such as in dispute resolution with a view to the disputants’ needs and the moral ensuring that the outcome of the obligations that may exist between process was considered fair by both them. Phrased another way, mediation disputants; and offers a better forum for individuals › The implementation of basic mediation up coaching visits to each committee. with weak legal claims but strong techniques in dispute resolution. The training focused on approaches needs backed by moral claims, such to dispute resolution and women’s as a family obligation to protect weaker Following this, a workshop was statutorily protected land rights. members from destitution. Likewise, organized. Participants were divided into Sketches based on typical cases women are likely to receive better six groups and asked to describe a land observed during earlier monitoring outcomes if disputes are resolved at dispute they had recently dealt with and visits to the target committees were the village level where there is greater explain how they had resolved it. These used to stimulate discussion on the scope for them to use the negotiability cases were used to exchange views on nature of dispute resolution and basic and flexibility inherent in customary principles regarding land rights and procedural principles, such as the decision-making to promote outcomes women’s inheritance rights embodied right of the parties to the dispute to be in their favor. This scope might increase in statutory law. In the months following treated equally in presenting arguments even further if, at this level, the dispute the workshop, 12 coaching field visits and evidence and the importance of resolution ‘circle’ was expanded beyond were delivered (two per village). informing them of the procedure that the heads of the current arbitrators to There was also an intervention at would be followed. Abunzi were also those who are skilled in mediation and the abunzi level, which targeted all asked to reenact a land dispute involving local representatives of the National 55 abunzi members (25 of whom an inheritance matter that they had Women’s Council (NWC), who are more were women) in four selected abunzi dealt with as a committee. This provided likely to have a better insight into and committees in the district of Rulindo. a concrete basis for a dialogue on lobby for women’s needs. Two participative training sessions women’s land rights as enshrined in were delivered followed by two follow- statute.
42 IDLO
the few cases in which they participated, proceedings. This occurred much less the approach adopted was far from frequently at the umudugudu level, rights-based. Generally, the forum presumably due to the involvement of advised women on how to behave as the inyangamugayo, whose approach ‘good wives’, how to avoid clashes with is generally more conciliatory and 3 their husbands, and how to restore ties facilitative. The inyangamugayo, in Results analysis once a clash had occurred (usually by particular, became more pro-active in A research framework was designed to coaching the women to show modesty, their mediation approach. They would gauge the impact of these interventions, acceptance and forgiveness). Women’s speak to disputants prior to and after principally through qualitative data rights to matrimonial property or to the mediation session in order to try collection techniques, including participate in decision-making on to overcome the obstacles that kept observation of dispute resolution important family affairs were seldom them from reaching a solution. Further, sessions, interviews and focus group included in their advice. Following the before a mediation session, they would discussions with disputants and intervention, NWC representatives often urge neighbors and other affected beneficiaries. A control area was actively took part in dispute resolution community members to take part selected nearby, making it possible to along with heads of umudugudu and in the meeting. compare and contrast developments in inyangamugayo, and frequently took the intervention zone with developments the lead in demanding attention to the C. Did a successful intervention in a similar but intervention-free interests of the women involved in the translate into improved outcomes environment. Data for both the village dispute. for women? level study and the abunzi study were Each of the intended objectives of collected over a ten–month period B. Encouraging the use of the intervention was realized with a (October 2009 – August 2010). mediation techniques in the reasonable level of success: land- resolution of disputes related inheritance disputes were A. Expanding the dispute Following the intervention, four resolved by using improved mediation resolution circle positive changes were observed in how techniques and conducted jointly by Following the training, all 21 land- dispute resolution was approached heads of umudugudu, inyangamugayo related inheritance disputes that arose by both village-level actors and and NWC representatives. The critical were dealt with at the village level by the abunzi committees. First, such actors question, however, is whether such heads of umudugudu in collaboration took more time to understand the changes translated into improved with the inyangamugayo and NWC arguments presented by — and the outcomes for women in terms of greater representatives. In terms of expanding circumstances and interests of — both protection of their land claims. the participants in dispute resolution, parties to the dispute and to reflect this To answer this question, attention to the inyangamugayo in all the targeted understanding in their attempts to forge the protections afforded to women localities acquired an established role a solution. Second, disputing parties under statutory law is important. The in dispute resolution together with the and members of the public were more Inheritance Law explicitly grants women head of umudugudu. On average, three often encouraged to propose solutions the right to inherit property held by their inyangamugayo would be present at to the dispute. Third, possible solutions natal family and also to make a claim mediation sessions. It is also noteworthy were presented at a later stage in the to such property before the death of the that through the intervention, the discussion and not, as often observed rights holder. It does not, however, go various inyangamugayo within the in the control zone, at the start of the so far as to guarantee women the right target area came to know or became discussion. Finally, more effort was to receive an equal share (in terms of more familiar with each other and made to explain the reasoning behind value, size and quality) to that of male continued to regularly meet to exchange the solutions found, particularly to siblings. It is also important to recall experiences. A practice also emerged disputants who were asked to make that under customary law it is common whereby inyangamugayo started concessions. to grant women residual claims to attending abunzi sessions in cases that land or to make symbolic gifts of land they themselves had not been able to With respect to whether these changes to women upon marriage. Women’s resolve. in practice were observed more statutorily protected land rights, strongly at the village or the abunzi therefore, were generally not Critically, in cases involving women’s level, it can be noted that while the considered to be completely at inheritance rights, one or two NWC intervention promoted positive changes odds with customary law. representatives were generally found in the approach adopted by abunzi to participate in the dispute resolution. committees, in a significant share The change in the approach adopted by of the cases observed committees the NWC representatives is particularly continued to behave as panels of noteworthy. Prior to the intervention, in judges presiding over adversarial
43 ACCESSING JUSTICE
ENGAGING WITH CUSTOMARY LAW TO CREATE SCOPE FOR REALIZING WOMEN’S FORMALLY PROTECTED LAND RIGHTS IN RWANDA (continued) 4 Conclusions The intervention led by RCN discussed in this case did not wrestle with or modify the customary rules in question. It was accepted that, although such rules were the root problem, there were strong social and economic factors that made it unlikely that they could be significantly modified through a short- term pilot intervention. It was reasoned that the most effective way to deliver Image: Sheila McKinnon more equitable outcomes for women was to exploit the flexibility inherent in With this in mind, the intervention did Moreover, targeted actors were customary justice systems and draw not result in a significant change in more inclined to accept claims of on moral obligations within existing customary dispute resolution practices, women that were conceivable under structure of culture and custom. at least with respect to incorporating customary law, although certainly The study yielded two key lessons that entirely new ideas. Cases in which not guaranteed. Three cases were may be useful for legal empowerment women asked for umunani (land given observed where a woman — divorced or programming: to men upon marriage to establish a widowed — was permitted to access her household) were very few - 8 out of portion of the ingarigari (residual land (i) In any strategy aimed at expanding 256 cases at the abunzi level. With remaining after the death of a rights women’s rights under customary law, the exception of two ambiguous holder) before the death of her parents. the modality of dispute resolution can be examples, all were unsuccessful. It Traditionally, ingarigari is divided among equally as important as the substantive should be highlighted that since, in male offspring; however, under certain rules in play. The results of the practice, women about to wed benefit circumstances, widowed or divorced intervention support the conclusion that, from their future husband’s umunani daughters may be allowed to make with appropriate training and advocacy, and intekeshwa (gifts received by a use of part of it. Allowing daughters to community-based dispute resolution man from members of the family or claim undivided family land during the actors can be encouraged to make occasionally from the family of his wife, life of the rights holder represents a greater use of such techniques, which can either when he marries or when a son meaningful and positive change in the translate into better outcomes for women. is born), equalizing such endowments concept of ingarigari. In this way policymakers and development would amount to ‘double gifting’ and, programmers can make positive use of in a situation of land scarcity, this is There were also five cases observed the flexibility in customary systems by generally seen as undesirable. where women were permitted to make stimulating reliance on forms of dispute real, rather than symbolic, use of resolution that place greater weight on Yet, on a small and modest scale, igiseke (land promised to daughters the needs and circumstances of more improvements in outcomes were by the family in case they ran into vulnerable disputants. In short, while observed following the intervention. difficulty). Again, granting women real flexibility can be exploited to protect male First, particularly at the village level, access to family land on the basis of interests in situations of inequality and the number of unresolved disputes a claim, such as igiseke, which was social change, change can also lend itself fell markedly. During the final month traditionally primarily symbolic in to the other direction. of the program, for example, only 13 nature, constitutes an expansion in unresolved cases were reported, which their ability to claim land and a marked represents about half of the pre- departure from common practice - only intervention caseload and none relating two similar cases were observed prior to to the inheritance of land. the intervention. Finally, it is noteworthy that these outcomes were realized in cases where the abunzi and village-level actors engaged in mediation, rather than adjudication.
44 IDLO
(ii) Modifying customary practices requires policymakers and development programmers to look beyond strategies that seek to align customary practice with statutory law to better understand why rights-abrogating customary practices exist and what other purposes they might serve. The RCN intervention, while enlarging the space for women, did not open the door for daughters to claim land from their father on an equal footing with their brothers, as provided in statutory law. The limitations preventing women from realizing land claims are anchored to a larger framework of social beliefs, practices and reciprocal rights and obligations from which they cannot be easily severed and any changes to comply with statute clearly challenge the interests of men.
It is therefore too simplistic to frame interventions as simply informing the population of the changes to women’s statutory rights and requiring them to modify their practices accordingly. Instead, it is best to encourage a transformation of customary practices in ways that simultaneously meet the interests of male power holders. By involving — rather than challenging — men and appealing to their sense Image: Sheila McKinnon of responsibility for the well-being However, in situations where the most interests of the intended beneficiaries, of family or community members, accessible justice system contains development actors must duly consider positive outcomes can be reached. By structural impediments of such a the reforms that are most likely to promoting reflection and debate within nature that making them the subject of secure beneficial outcomes for women, communities on prevailing practices reform is highly unlikely to yield success in a timely manner, irrespective of the surrounding marriage and inheritance, and might even be detrimental to the path taken. change can potentially arise. The results of such dialogue processes should be fed into policy debates at the national Key lessons that may be useful for legal empowerment programming: level on the implementation of new statutory laws. (i) In any strategy aimed at expanding women’s rights under customary law, the modality of dispute resolution can be equally as important as the substantive rules in play.
Admittedly, appealing to power-holders (ii) Modifying customary practices requires policymakers and development programmers to look sense of good conscience is not the beyond strategies that seek to align customary practice with statutory law to better understand ideal approach for vesting women why rights-abrogating customary practices exist and what other purposes they might serve. with enhanced land tenure security.
45 ACCESSING JUSTICE
TWO FACES OF CHANGE: THE NEED FOR A BI-DIRECTIONAL APPROACH TO IMPROVE WOMEN’S LAND RIGHTS IN PLURAL LEGAL SYSTEMS135
such policies and subsequent laws have been unsuccessful in pluralist ›IN BOTH MOZAMBIQUE legal contexts, as customary law continues to be observed by the majority AND TANZANIA, TRADITIONAL of the population who live in rural PRACTICE LAGS FAR BEHIND 1 communities and are largely ignorant WOMEN’S RIGHTS IN LAW‹ Introduction of or unfamiliar with formal law and In sub-Saharan Africa women are its institutions. The challenge is thus disproportionately affected by a to ensure that the formal law will lack of property rights, leading to offer sufficiently secure land rights to as understood by the local leaders at the lower incomes, inadequate health, women, and to persuade or coerce local time, which often focuses on women’s nutrition, education, and lifestyle. governance structures to follow the duties, rather than women’s rights. In Contemporary deprivation of women’s formal law. recent history, customary practices have land rights results from the current prevented women from owning their land scarcity, conflict driven and Customary practices in Mozambique land because control rights are vested socially transformative challenges and Tanzania demonstrate the complex with her husband or maternal uncles or facing traditional communities. interrelationships in pluralist legal nephews. Many customary systems have come systems. Both countries are governed to entrench discrimination and by statutory law, customary law and A survey of 15 institutions in exclusion along status, age or gender religious law, which overlap to varying Mozambique involved in providing legal lines, or worse, have manipulated degrees. In Mozambique, community support to the poor and 104 individuals traditional rules to consolidate legal courts have existed since colonial times across various districts was organized entitlements and the subsequent to deal with civil disputes and minor by the CLEP in 2007, with the objective economic advantages in the hands of crimes. Although they are formally of contributing to a national consultation a few customary chiefs. For example, recognized in the Constitution, they are process with a specific focus on property immediately prior to the introduction not part of the formal justice system. rights. The CLEP study137 identified a of the Village Land Act 1999 and the Accordingly, community courts receive number of difficulties encountered by Land Act 1999, Tanzanian widows who no financial or material assistance from the poor, particularly those related to had historically been allowed to stay on the government or judicial courts, and the defense of their property rights, their husbands’ land, were increasingly there is no right of appeal of community including: weak access to justice due dispossessed of that land as it increased court decisions to the district courts. to lack of legal knowledge; low levels of in value. They comprise of local elders elected schooling and literacy; difficult access by the community who generally try to institutions defending them and their Land titling, registration, formalization to mediate and/or conciliate, or make property; cultural habits negatively and distribution have been key decisions according to ”equity, good influencing property transfer rights upon processes in the long-term strategy sense and justice”, rather than legally death; and weak institutional capacity to to promote economic growth and trained individuals bound to apply the provide the poor with legal support. development, and women’s access law.136 In practice, this results in the The CLEP study confirmed that to land. To a large extent, however, continuing application of customary law many widows and their children are
135 The full text of this case study, including references, is found in A Kapur, ‘Two Faces of Change: The Need for a Bi-Directional Approach to Improve Women’s Land Rights in Plural Legal Systems’ in E Harper (ed), Working with Customary Justice Systems: Post Conflict and Fragile States IDLO (2011) 73-89. 136 P Raina, ‘Republic of Mozambique – Legal System and Research’ Globalex – Hauser Global Law Scholar Program, cited in Kapur, ibid, 79. 137 E Alfai, Legal Empowerment of the Poor: Defending Property Rights (2007) 1, cited in Kapur, above n 135, 83.
46 IDLO
dispossessed of their inheritance under customary law. However it also and that 95 percent of interviewees prohibits discrimination against women resorted first to neighborhood, district in the application of customary law. and traditional leaders as a response Finally the Law of Marriage Act 1971 to such dispossession. However, 92 (the LMA) (applicable only in mainland percent of respondents in rural areas Tanganyika) explicitly supersedes stated they would comply with the Islamic and customary laws and grants decision made by local structures — women the equal rights to acquire, hold taking a case to the judicial courts was and dispose of property (section 60(a)).139 a very rare phenomenon. The CLEP study concluded by highlighting four Despite these progressive and explicit areas of change that were needed statutory provisions, customary law to overcome the obstacles faced by remains the law closest to the people, the poor in protecting their property especially in rural Tanzania, and rights: education in and dissemination continues to feature practices, norms of property rights; facilitation of and tradition-driven perceptions of access to registration; inter-sectoral rights that hinder women’s ability strengthening and coordination; and to be allocated land as independent reinforcement of policies. In a 2007 individuals. Specifically, land rights survey of six provinces of Mozambique, are still “viewed in light of a woman’s 80 percent of the 384 interviewees marital status, and women are required Image: Sheila McKinnon considered that land would be inherited to obtain their husband’s consent.”140 according to the gender of the heir. For example, the Constitutional This was despite the fact that some 52 prohibition of discrimination based on percent of widows and women heads- sex or religion is not enforced in cases of-households knew about the laws of customary inheritance. Similarly, the state for many of these statutes to establishing gender equality, as did 48 despite the existence of provisions in the effectively apply to widows or divorced percent of the men and 68 percent of the LMA on property rights for women, their women. On the other hand, the High justice officials interviewed.138 application depends on the status and Court has opined that customary wishes of the head of the household, laws should be modified to meet the In Tanzania, the Constitution accords a reflection of the inconsistent and requirements of equality and the human “equal opportunities to men and women often ineffective implementation of the rights standards of the Constitution and alike” (article 9(g)) and the Land Act LMA. Moreover as the LMA does not international law. 1999 provides for women to have the cover inheritance, it does not explicitly same rights to land as men and requires supersede customary inheritance As such, the formal law for both land co-ownership by married couples. practices which often preclude women Mozambique and Tanzania are more Under the Land Act a spouse cannot from inheriting land, even following their progressive than the customary laws. transfer, mortgage, sell, lease or give husbands’ deaths. Despite their illegality In both countries there are statutory away land that is under co-occupancy due to their inconsistency with the provisions that give women the legal without the other spouse’s explicit Constitution, this makes little difference right to own and inherit land, either consent, even if the land is registered in practice: several cases on appeal through specific wording that gender in only one spouse’s name. The Village to the High Court have simply been should not be a distinguishing factor, or Land Act 1999 protects existing referred back to clan councils or local by stating that every person is entitled customary rights in land, which de facto, customary elites. Further it is necessary to own property, which constructively excludes women who never owned land for marriages to be registered with includes women.
138 Save the Children, Denied Our Rights: Children, Women and Inheritance in Mozambique (2007), cited in Kapur, above n 135, 83. 139 Section 114 also requires the court to have regard for whether the spouse’s domestic service amounts to such efforts and contributions that entitled her to a share of the property upon divorce. Neither the husband nor wife may unilaterally transfer rights in the matrimonial home without the other person’s consent. 140 P Koskinen, ‘To own or to be owned; women and land rights in rural Tanzania’ (2002) Human Rights and Development Yale Book 145, 177, cited in Kapur, ibid, 84.
47 ACCESSING JUSTICE
TWO FACES OF CHANGE: THE NEED FOR A BI-DIRECTIONAL APPROACH TO IMPROVE WOMEN’S LAND RIGHTS IN PLURAL LEGAL SYSTEMS (continued)
and Poverty Program promoting equal land rights was established across six regions in the country by the Law and Human Rights Centre, the Women’s Legal Aid Centre, the Women 2 Advancement Trust, the Tanzanian 3 The intervention Women Lawyer’s Association, and Results analysis A burgeoning community of domestic ENVIROCARE. In each region, a program To assess accurately whether current non-governmental organizations (NGOs) comprised of a baseline survey, a needs NGO strategies are effective, the is undertaking a range of initiatives assessment, training, workshops/ statutory legal framework must be promoting women’s awareness and seminars, and interactive activities were sufficiently progressive and explicit exercise of their rights under statutory conducted to identify issues requiring with respect to gender equality, land law in Mozambique and Tanzania. These future intervention. and/or property ownership and, if initiatives, carried out with the support possible, family and inheritance law. of lawyers and legal experts, are based The logical enquiry following these Mozambique and Tanzania were upon the premise that women’s land interventions is whether NGO initiatives selected as target countries for this rights will be better secured through that disseminate and utilize statutory research because the land reforms statutory law reform than by allowing law were changing practices with explicitly promote gender equality. A and encouraging customary law to respect to women’s land tenure security sound indicator of the extent of change evolve. Lawyers place emphasis on in rural communities. More specifically, as a result of statutory law and NGO different approaches, including legal in reference to the major obstacles activities is the experiences of women training, land redistribution, registering outlined at the start of this case study, most likely to encounter gender titles, the education of officials, special are these NGO initiatives overcoming discriminatory land practices in rural loan facilities for women, and quotas the lack of knowledge, application communities. For both countries, such to ensure that women are represented and enforcement that have previously women were identified to be divorced on decision-making bodies. In prevented the efficacy of statutory law in women and widows because their Mozambique, organizations such as protecting women’s land rights? relationship to the man through which
the Association for Women in Legal Image: Sheila McKinnon access to property is granted under Careers, the Rural Association for customary law had been severed. For Mutual Assistance and the Association divorced women, the issue is one of of Women, Law and Development are retaining control over some of the land providing legal assistance and legal as a result of the marriage partnership, education on women’s rights. whereas for widows, the issue is one of inheritance; both involve practices NGOs in Tanzania are also targeting traditionally considered to be properly judicial courts, which apply statutory administered under customary law. law as the preferred venue for improving In both Mozambique and Tanzania, land tenure security for women, surveys were administered to divorced particularly following the death of their or widowed women and community husband or divorce. In 2004, a Gender leaders in three villages where:
(i) paralegals had been trained on legal rights related to land and to help resolve conflicts (paralegal villages); (ii) there was an established paralegal office with trained paralegals working under the supervision of a qualified lawyer (office villages); and (iii) there were no legal education or paralegal services available (control villages).
48 IDLO
Partner organizations were selected on local authorities, including leaders and the basis of specialization or coverage police. Given women’s general lack of ›WHEN WOMEN TOOK of land-related rights, the provision of influence within their local communities, paralegal services and access to women there is an important role for NGOs to LAND CLAIMS TO FORMAL in rural communities. play in notifying police and community COURTS, THEY WON‹ leaders of formal court decisions and Despite logistical and methodological their obligations to ensure adherence challenges, the data obtained through to them. Strengthening relationships the surveys suggested definitive trends and information sharing between civil and a complex interplay of various social society and enforcement authorities and economic contextual factors; both through seminars and networks could allow inferences that could prove useful enhance awareness of binding court for a range of stakeholders in developing orders and the sense of responsibility to of customary norms, as reinforced by countries with plural legal systems. see them executed. local community leaders. Accordingly, at this preliminary stage a sustained A. Common themes Thirdly, there was a strong preference focus on strengthening NGO expertise A noteworthy pattern has been that among women in villages without in dissemination, education, legal formal court decisions were, without paralegal services for formal courts over drafting and practice is likely to be more exception, in favor of women’s land rights community structures. This could be impactful than diverting resources claims following dispossession upon read as an indication of dissatisfaction into mediation. Moreover, cases of divorce or widowhood. While a number with their experiences with customary dispossessed widows and divorcees of court decisions are still pending in procedures and their negative results, tend to legally favor the woman; using Mozambique, those that have been and a general perception that formal mediation, which is often reserved delivered resoundingly reinforce women’s courts are fair and follow the law. for legally complicated situations or rights to inherit land when their husband Community leaders across the two situations in which all parties are legally dies, and women presumptively receive countries had knowledge, to varying at fault, is unlikely to be as effective half the assets upon divorce, including degrees, of the relevant laws and in promoting women’s land rights as land. This not only bodes well for the high acknowledged the benefit of women unequivocal public court judgments number of cases awaiting decisions, but controlling land. Contrasting with their explicitly referring to and reliant on also for the consistency in application knowledge was their striking failure to statutory law. of the law in the formal justice system. resolve land conflicts in favor of women However, the small sample size of NGO- claimants, including those who went B. Mozambique assisted land claims in court makes it on to obtain court judgments in their In Mozambique, the presence of a difficult to conclude with certainty that favor. Three of the four exceptions to paralegal office coincided with a general this trend applies universally across this disappointing trend (out of the 25 trend in women seeking to challenge formal courts. If it can be assumed that women who asked their community their dispossession; preliminary judicial officers who are trained in gender leader for a resolution) occurred in a appeals being made to the community equality and land rights are uniformly community where the leader was a leadership, which generally failed to applying the relevant statutory law, this woman who was knowledgeable about satisfactorily resolve the situation; is encouraging for both domestic civil and committed to enforcing gender women unanimously turning from society and development agencies equality, including in land disputes. community leaders to the paralegal and donors. service; and an emerging trend whereby Finally, although paralegal services women bypassed their community Secondly, compliance with formal court attempted mediation as the first method leaders and sought legal advice directly. orders remains a challenge in rural for resolving conflicts brought to Women in villages with paralegals communities. Regardless of the reason, them by widows and divorced women, generally (all but one) only challenged the implication is that increasing they were generally unsuccessful. their dispossession in some way; only compliance with formal court orders Resistance to paralegal mediation by a few sought legal advice after their depends on better communication of husbands or the husbands’ families community leader failed to resolve their the decision to the relevant parties, is likely to be a reflection of the case; and even fewer women took their and a commitment to enforcement by prevalence of contemporary practices case to court.
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TWO FACES OF CHANGE: THE NEED FOR A BI-DIRECTIONAL APPROACH TO IMPROVE WOMEN’S LAND RIGHTS IN PLURAL LEGAL SYSTEMS (continued)
These differences are not surprising. the rate of seeking advice and resolution The paralegals in each village educated, from the community leader. Women in trained and provided advice to women, villages with paralegals only or without but were extremely limited in their any services, were far less likely to capacity to assist with drafting claim approach a community leader. These documents for court submission. Thus, women explained that the patriarchal 4 while women’s social attitudes and culture was the reason for not Conclusions behavior had changed in these villages, approaching their community leader. By Overall, there are some interesting they did not have the support, expertise contrast women with paralegal offices cross-country comparisons that further and therefore capacity to take their continued to approach community illustrate the importance and nature of claims to a formal venue. leaders, but would revert to the formal the role of NGOs in this context. First, Mozambican women in villages with courts if this decision was considered Tanzanian women had a markedly paralegals and paralegal offices discriminatory. higher knowledge of and preference preferred community courts in stark for formal court systems across all contrast to the women in the control This suggests that the stronger and three conditions, which implies higher villages, who preferred formal courts; more visible the presence of NGOs, levels of understanding about rights, their reasons highlight the dilemma the more likely are women to consider awareness of the functioning and role of underlying the present study. While challenging the existing patriarchal the court, and knowledge of decisions community structures have a greater culture. Ultimately, the ability of an made according to the law. Therefore, capacity to be responsive, adaptive and established legal service to assist them it can be fairly concluded that NGO accessible, it is the content of their with taking claims to the formal court efforts in disseminating laws to the decisions that is problematic. All of the emboldens and empowers women to population and in educating them about reasons cited in support of community take the first step of challenging their the law and how to use it are correlated courts relate to the process, rather dispossession. with a preference for (and therefore than the substance of the decisions an increased likelihood of accessing) made. For those who preferred the formal courts. formal courts, it was on grounds related to enforceability of decisions and the Conversely, Mozambican women absence of corruption. This combination had a stronger preference for of reasons reinforces the ultimate goal community courts. This may be due — that land rights conflicts be resolved to a combination of: ignorance of at the local level consistent with gender- the formal law; lack of familiarity or neutral legislation. understanding of the operation of formal law and courts; lack of faith in the I. Tanzania efficacy; relevance and/or wisdom of the In Tanzania too, interventions supported formal court; or merely an attachment by the presence of a paralegal had a to locally applied norms. The cross- significantly greater impact as compared country comparison is useful in this to those featuring the presence of mere case. As Tanzanian women were more paralegals or no paralegals at all. The likely to be permitted to stay on their largest difference between women in ›WITH LEGAL ASSISTANCE, land, it is obvious that the preference of villages with a paralegal office and Mozambican women is not due to better, women in villages with paralegals only WOMEN WILL CHALLENGE more rights-protective practices with or with no paralegal services at all lay in DISPOSSESSION‹ respect to women’s control over land. It
50 IDLO
also confirms that legal dissemination As already highlighted, the varying and education are critical precursors degrees of knowledge of community to any civil society intervention; leaders across the two countries of the women who do not feel familiar with or relevant laws and acknowledgement of comfortable about the formal justice the benefit of women controlling land system are unlikely to approach NGOs contrasted with their striking failure to for assistance in accessing its courts. resolve land conflicts in favor of women claimants. Two important conclusions Consistent with the above differences, follow from this: first, consistent with it can reasonably be concluded that the literature, despite their knowledge of knowledge, application and compliance legislation, community leaders tend to with respect to women’s land rights ignore the law in resolving land disputes are inextricably linked to the relative within the communities; and second, prevalence, capacity and expertise of the presence of NGOs and their capacity civil society organizations educating to assist with land rights claims is even communities and providing legal more important because community assistance to women. The reasons for leaders should not be expected to apply these trends are multiple, complex and their knowledge of formal law. interrelated; they are likely to canvas the Image: UN Photo/Eskinder Debebe nature, age and level of dissemination Finally, although paralegal services legal knowledge levels and decisions of the laws, differences in customary attempted mediation as the first method in land disputes by community leaders practices and their development, and for resolving conflicts brought to them suggests that NGOs are a better target the capacity of NGOs and government by widows and divorced women, they group to further catalyze change in rural agencies to educate and facilitate the were generally unsuccessful. Thus, an community land practices with respect exercise of women’s rights. approach using law as a tool to coerce to women. Women’s experiences in behavioral change seems a necessary Mozambique and Tanzania suggest that Further wider positive impacts are precursor to a softening of position this is perhaps the most important in likely to result, provided that judicial by adverse individual parties. Legal securing their rights to land: without officers who are trained in gender dissemination, education and assistance accessible legal advice and assistance, equality and land rights are uniformly through NGOs appear to be coaxing even the best and most progressive applying the relevant statutory law. change in communities and encouraging statutory land laws have little chance of For example, given the prerequisite of women to challenge their dispossession, changing community perceptions and paralegal assistance for women to take both within their communities and practices in land distribution so that land claims to formal court increasing through formal structures. This they recognize and sufficiently protect support for this type of NGO assistance combined with the discrepancy between women’s land rights. should yield consistently positive results in cases of dispossession. However, Key lessons that may be useful for legal empowerment programming: given the difficulties identified in compliance with court orders remains (i) Knowledge, application and compliance with respect to women’s land rights are inextricably a challenge in rural communities, as linked to the relative prevalence, capacity and expertise of civil society organizations educating noted above NGOs an important role communities and providing legal assistance to women. in notifying the relevant authorities of (ii) An approach using the law as a tool to coerce behavioral change seems to be essential these decisions and their obligations to to a softening of position by adverse individual parties at the informal justice level. ensure adherence to them.
51 ACCESSING JUSTICE
LEGAL EMPOWERMENT OF UNWED MOTHERS: EXPERIENCES OF MOROCCAN NGOs141
The Family Code only recognizes parents’ marriage certificate. Unwed legitimate paternal filiation, by which mothers may register their child’s birth, children are attributed to a father when but must choose a first name for the he is legally married to the mother at child’s fictional biological father that the time of conception. ‘Illegitimate’ begins with Abd. 1 or ‘natural’ paternity does not exist Introduction under Moroccan law and children born Second, the Family Booklet is the Unwed mothers in Morocco face a to unwed mothers have no rights from main official document proving one’s unique and difficult set of legal and their biological fathers, such as the legal identity and civil status, and is of cultural challenges in obtaining identity right to bear his name, receive financial utmost importance in one’s daily life. papers that are essential to move freely support or inherit. In contrast, mothers The Family Booklet is required for, inter within Moroccan society and access are legally affiliated to and responsible alia, obtaining a National Identity Card, a social services, such as education, for their children merely by the fact of passport, a driver’s license, free medical transportation, and medical care. The giving birth to them. care and other social services, legal aid existing legal context presents significant assistance in courts and a vaccination barriers to access for unwed mothers. These facets of the laws are often, booklet. Also, to request an official birth, Both criminal and civil laws in Morocco whether correctly or incorrectly, attributed marriage or residence certificate, the severely repress behavior associated to religious precepts. As a result, they are requesting individual needs to present with being an unwed mother and have more difficult to contest and challenge. the Family Booklet. It is also necessary gaps that prevent unwed mothers from as proof of identity to be able to obtain accessing their rights, leading to their The law provides for DNA testing to employment, register for government social invisibility and legal inexistence. establish paternity, but only to prove literacy classes, be admitted to the or contest the parentage of a child hospital, start a business, purchase a Sexual relations outside of marriage conceived during a legal marriage. home or other property based on credit, are illegal in Morocco, with increased However, the law does not provide for get married, open a bank account, receive penalties where one or both parties court-ordered paternity testing of a money transfers, and claim inheritance are married to another person. At biological father against his will upon rights from one’s parents. Registration in present, women are disproportionately the request of the unwed mother or a Family Booklet is generally required to imprisoned under these provisions. The her child. Finally, the fact that adoption enroll children in school. Without a Family mere threat of arrest and the definition is not legal in Morocco further limits Booklet, people simply do not legally of sexual relations outside of marriage options available to unmarried women exist, a situation in direct contravention as illegal, impacts on people’s behavior, who become pregnant.142 of article 16 of the International Covenant attitudes, health, which in turn limits on Civil and Political Rights. Finally, it is their access to their rights. This is The two main procedures impacting illegal not to have official identity papers particularly true for unwed mothers. The on unwed mothers and their children on one’s person. Moroccan Penal Codes also criminalize relevant to this discussion are abortion as a public morality offense. registering a child’s birth and obtaining A central question thus is whether Abortion is illegal unless deemed a Family Booklet. or not unwed mothers have the legal necessary to protect the mother’s health right to obtain a Family Booklet for and conducted by a medical doctor. First, for a child to legally exist, the birth themselves and their children. It is As a result, many single women may must be registered at the Civil Status worth noting that under the pre-2002 be forced to be mothers, whether the Office where s/he was born. Reforms Civil Status Law, any single person, man pregnancy resulted from illicit sexual undertaken in 2002 introduced specific or woman, could obtain their own Family relations between two consenting provisions allowing an unwed mother to Booklet. In contrast, the current law parties or rape, due to the lack of access register her child’s birth. Registration restricts the drafting and granting of a to legal, safe and affordable means by requires a birth attestation written by a Family Booklet to a married man only, which to end unwanted – and in this doctor or midwife and legalized by the with only a few exceptions where his context, illegal – pregnancies. local authorities, as well as a copy of the wife may obtain a copy.
141 The full text of this case study, including references, is found in S Willman Bordat and S Kouzzi, ‘Legal Empowerment of Unwed Mothers: Experiences of Moroccan NGOs’ in S Golub (ed), Legal Empowerment: Practitioners Perspectives IDLO (2011) 179-201. This research for this paper was undertaken prior to the Constitutional reforms in Morocco in 2011 which potentially changes the status of unwed mothers and their children under Moroccan law. 142 The system of kafala exists in Morocco, which is a system of guardianship or legal custody of children however such children cannot inherit from their guardians.
52 IDLO
The program also enables unwed them to the justice system and provide mothers to break the silence and speak support during the process. The NGO out about their lives. In 2002, unwed staff monitors the authorities’ behavior mothers participated actively with and decisions on these cases and other women beneficiaries to revise conduct outreach activities for local 2 the first draft of the program manual, authorities and civil servants, raising The intervention suggesting modifications and additions their awareness on women’s rights. A. Grassroots-level human related specifically to sessions on the They also provide legal counseling for and legal rights education rights of unwed mothers. They also women and referrals to lawyers for pro Local non-governmental organizations proposed new topics of interest to them bono or reduced fee services. (NGOs) in Morocco have established for the program. As a result, the second different methods of assisting unwed version of the Manual, published in The four local NGOs handle diverse mothers to find avenues to secure 2004, contains a session on procedures family and criminal law matters their identity papers and assert their for obtaining a Family Booklet, as well concerning hundreds of women legal rights, while at the same time as field visits to Civil Status Offices, beneficiaries per year. Unwed mothers helping them to find support from hospitals and the police, all of which comprise approximately 10 percent other program participants. Since the also benefit other women. of their total beneficiaries of court early to mid-2000s, four local NGOs accompanying activities. have been leading members of a group An integral part of the program of local organizations from across includes group field trips to local public While the program was initially the country, which, in collaboration institutions responsible for women’s conceived as primarily accompanying with Global Rights, designed and rights – such as the police station, Civil women to courts and monitoring implemented a widespread grassroots- Status Office and courthouse – during the judiciary, women also frequently level program of human and legal rights which women meet and hold question approach NGOs for assistance with education for primarily illiterate women and answer sessions with relevant legal problems involving other public from traditionally underserved and personnel. administrations, such as the police marginalized populations (the program). station, Civil Status Offices and In field visits to Civil Status Offices, hospitals. For example, NGOs also This broad-based, long-term women learn about services offered, intervene with local authorities to find initiative includes: papers necessary for different solutions to the obstacles listed above applications and files, and procedures to to unwed mothers when registering (i) participatory drafting of an Arabic follow. They also become familiar with their children’s births and obtaining a language facilitator’s manual with 74 the offices, and make contact and form Family Booklet. Their staff frequently two-hour program sessions on diverse relationships with the staff that then accompany these mothers to the human and legal rights topics (the allow them to return to the Civil Status hospital if they have difficulties obtaining Manual); Offices for assistance. a birth attestation. When unwed (ii) intensive training and ongoing peer mothers cannot obtain certain required evaluation of hundreds of local NGO Unwed mothers actively ask questions documents, the NGOs work with local members – primarily young women – during these field visits, including on administrative authorities to find an as program facilitators; and procedures for registering children alternative solution that will allow them (iii) implementation of the program by and obtaining a Family Booklet. to eventually register their children. network member NGOs with tens of Local NGOs also report how these In frequent cases where the 30-day thousands of women participants in field visits demystify the local public deadline to register a child’s birth has different areas across Morocco. administrations and make them a less expired, volunteer lawyers help unwed intimidating and threatening place for mothers file a court case to obtain a Based on in-depth consultations with women. judicial declaration of birth. the participants, the program was expanded to contain additional themes B. Court Accompanying Program As with the human and legal rights identified by the women themselves. The In 2006, in collaboration with Global education program, while the Court program does not limit itself to providing Rights, local NGOs in eight different Accompanying Program was intended mere information about the laws, regions in Morocco launched a one- first and foremost to help women access but uses a participatory methodology year pilot initiative to set up structures their rights through individualized legal appropriate for developing individual for Court Accompanying Programs orientation and assistance, the Court capacities to defend one’s rights and within their organizations. Local NGO Accompanying Program also impacted building group skills for advocacy and staff accompanies women to courts local authorities’ attitudes, behavior and social change. and other relevant government offices policies towards unwed mothers. and public services in order to orient
53 ACCESSING JUSTICE
LEGAL EMPOWERMENT OF UNWED MOTHERS: EXPERIENCES OF MOROCCAN NGOs (continued)
participants that unwed motherhood is a social reality that must be addressed. ›NGO HELP IS CRUCIAL One participating NGO noted that the other women started behaving normally IN ACHIEVING SOME towards the unwed mothers and RECOGNITION AND DIGNITY 3 stopped marginalizing them. ‹ Results analysis Another unanticipated positive result FOR UNWED MOTHERS A. Grassroots-level human reported by local NGOs is the effect and legal rights education the program has had on local public Unwed mothers concretely benefited administrative staff and authorities, from the legal information in the specific particularly due to the field visits Family Booklet maintains their current program session on their rights, which organized in the program. As specifically stigmatization and that of their child. explains the procedures for registering concerns unwed mothers, NGOs Since the law requires a symbolic a child’s birth and applying for a Family organized field trips to Civil Status father’s name beginning with Abd Booklet. In one example in south-central Offices where program participants for registration, children are easily Morocco, two rural, unwed mothers meet with the local authorities and identifiable as being born to unwed participated in an education session on public servants, mainly from the Civil mothers. Following reforms in 2002, the procedures for registering children Status Office. Since the authorities unwed mothers are now requesting out of wedlock. Afterwards, they address the entire group, positive, exemptions to the law restricting Family approached the facilitator, who directed superficial answers to questions posed Booklets to legally married couples. them to the NGO court accompanying are witnessed by many. The authorities services. As a result, both women went then become accountable for such Further, although the program has been on to file court cases and obtain judicial statements when women later return to successful in making certain changes, birth declarations for their previously apply the laws and procedures in their many unwed mothers still express unregistered children. In the four NGO specific cases. concern with the fact that if an unwed experiences described here, unwed mother obtains a Family Booklet, it mothers also formed independent Unwed mothers are reportedly treated effectively exonerates the biological discussion, peer education and support with more dignity at the Civil Status father from ever having to take groups among themselves to share their Office if an NGO representative responsibility for the child. As one NGO experiences and collectively analyze accompanies them. Anecdotal evidence member summarized the viewpoints them. In one medium-sized town in from local NGOs describes how local of many unwed mothers, “what is the particular, the unwed mothers who Civil Status authorities are now friendly, point of being legally empowered as an participated in the program decided to polite, respectful and willing to provide individual if other actors – the state, create their own NGO just for unwed unwed mothers with information and biological fathers – are thus absolved of mothers. try to simplify procedures for them. In their legal responsibility?” Some women one large city, local Civil Status officers emphasized the need for sustainable Similarly NGOs describe the impact accommodate unwed mothers known measures, for instance, where the that participating in the legal and to be beneficiaries of the local NGO, father’s paternity is attributed and where human rights education has had and help them with their paperwork he assumes his share of responsibility on other program participants as a from other offices and administrations, for the child’s upbringing. This seems result of unwed mothers’ presence facilitating all the steps necessary preferable as compared to the current in the groups, as well as the specific to process the case with other civil solution of forcing the biological father program sessions on unwed mothers’ servants. to marry the mother, only to divorce her rights. They mention how attitudes of immediately afterwards and have no rejection towards unwed mothers were When consulted by local NGOs, unwed legal responsibility for the child. Local replaced with sympathy and support. mother beneficiaries expressed NGOs have now requested assistance On a larger scale, as a result of the conflicting opinions about trying to from Global Rights to design and program there was a shift from the obtain their own Family Booklet. Some implement future activities to address consensus of silence around the issue complain that registering a natural this perspective voiced by unwed of unwed mothers to a shared vision of child’s birth and obtaining an individual mothers.
54 IDLO
B. Court Accompanying Program One indicator of social change highlighted by local NGOs is that unwed mothers actively seek out NGO services and assert their rights openly, rather than hiding and accepting their 4 plight. Second, local NGOs describe Conclusions how the Court Accompanying Program Practitioners, policymakers and donors led some unwed mothers to confront should pay careful consideration to authorities directly and resolve the details of any given legal context problems themselves without the NGO when designing, implementing and accompanying them. Third, nearly all evaluating law-oriented development of the unwed mothers who contacted initiatives aimed at women. Laws the four local NGOs to date have been concerning unwed mothers have able not only to register their children’s implications for the role of local NGOs, births, but also to obtain Family and highlight implications for the Booklets in their name in which to definition of results and the measuring record their children. of success. Different circumstances can make it difficult to consider whether In the two years since the May 2007 or not projects promote women’s legal completion of the initial one-year Image: Matthewb empowerment. pilot period of training and setting up Most importantly, unwed mothers do of the Court Accompanying Program not have a clear legal right to obtain a The popular discourse one frequently structures, the four local NGOs were Family Booklet in the legislation as it hears in Morocco – especially among each able to obtain Family Booklets for currently stands. In many places, such the authorities, intellectuals and other 11 unwed mothers per year on average, as small cities where there is no NGO members of the elite – is that the a significant number in the context. If Court Accompanying Program, the current problem is the population’s it were not for the Court Accompanying Civil Status Office does not give unwed ignorance of the laws and their rights. Program, the number would likely mothers Family Booklets. be zero. A recurring comment by both official Finally, as with the human and legal and civil society actors is that legal In addition to the limited NGO human rights education program, while the education campaigns are the needed and financial resources described Court Accompanying Program was solution to many social ills. Under the earlier, the lengthy procedures mean intended first and foremost to help above circumstances, in which laws are that even with NGO assistance, it takes women access their rights, through either not applied, are unclear, or have unwed mothers three to eight months individualized legal orientation and gaps, awareness of them is insufficient; to obtain a Family Booklet. Many unwed assistance, the Court Accompanying knowledge alone is not power and does mothers still hesitate to address their Program also impacted the attitudes of not effect change. The situation of situation openly because of the taboo local authorities, behavior and policies unwed mothers in Morocco illustrates and criminal nature of the issue. Since towards unwed mothers. Moreover, the need for concrete assistance in legal reforms impacting unwed mothers’ local NGOs describe how many of their accessing the public administration status have only recently been enacted, unwed mother beneficiaries are referred and in navigating the system in order the authorities are still grappling with to them now by the local authorities to obtain some measure of justice for their interpretation and application. themselves. themselves.
55 ACCESSING JUSTICE
LEGAL EMPOWERMENT OF UNWED MOTHERS: EXPERIENCES OF MOROCCAN NGOs (continued)
Practitioners, policy-makers and donors must realize that support for NGOs that provide such direct assistance to marginalized populations will be necessary over the long term until 4 the larger structural issues of social Conclusions (continued) stigmatization, illiteracy, corruption, The question then becomes what the and legal and administrative reform role of local NGOs is in this context. In are addressed. Promoting a dialogue addition to providing legal information between program participants about and advice, they serve as intermediaries their situations and struggles can help between women and the authorities. shift reactions of silence to a socially The NGO staff members’ knowledge of taboo subject toward sympathy and procedures and their personal contacts support and the acknowledgment that with staff at different administrations unwed mothers are a social reality that facilitate the process for unwed must be addressed. mothers, as well as the civil servants’ jobs. The NGO presence also serves The current legal context in as watchdog over local authorities. Morocco also raises questions about Through such accompanying, NGOs defining legal empowerment. Legal help unwed mothers avoid humiliation empowerment for unwed mothers in Image: See Wah at public administrations and provide Morocco not only concerns ensuring protection from corruption and abuse that good laws are applied or that of authority by civil servants. In the women have access to the rights focus on access not only to the justice absence of traditional family support contained therein, as is the case with system, but also to the legislative networks and social connections that registering births, but also involves reform process. In a long-term strategic usually facilitate this, NGOs step in NGOs working with local authorities to process to respond to unwed mothers’ to fill this role for unwed mothers. In identify discriminatory laws, such as priorities and opinions, NGOs can build areas where the law is unclear or vague, the Penal Code provisions outlawing on the pilot experiences implemented at NGOs complement the work of the local sexual relations outside of marriage, the local level and consolidate current authorities and encourage advantageous overcome legal gaps, or in the case of unofficial practices to generate support interpretations of laws. This is the case the Family Booklet, interpret the law and mobilize the state to integrate and with the local police, who now limit their in a progressive manner. Future legal recognize unwed mothers and their interventions at hospitals to determine empowerment initiatives concerning specific realities and concerns in the unwed mother’s identity in order unwed mothers should therefore the law. to avoid the child being abandoned. Without any orders or specific guidelines on how to deal with unwed mothers, the police frequently refer the unwed mother to local NGOs for assistance instead of arresting them.
In areas where there is a legal gap, as with the issuance of a Family Booklet Key lessons that may be useful for legal empowerment programming: to an unwed mother, local NGOs work (i) In addition to providing legal information and advice, NGOs can serve as intermediaries with local authorities to encourage between women and the authorities. alternative solutions that are more beneficial to women’s rights, such as (ii) Practitioners, policy-makers and donors must realize that support for NGOs that provide convincing the local Civil Status Office such direct assistance to marginalized populations will be necessary over the long term until to give unwed mothers their own Family the larger structural issues of social stigmatization, illiteracy, corruption, and legal and Booklet. administrative reform are addressed.
56 IDLO
THE TRAFFICKING OF GIRLS IN WEST BENGAL143
study on trafficking in India by the Indian cases on a global scale. The training of National Human Rights Commission public prosecutors in trafficking laws and (NHRC) notes that some parents procedures is a fundamental component expressed a willingness to send their in ensuring the effective prosecution of daughters away “as soon as they get human traffickers and the full enjoyment 1 the chance.” of victims’ rights, including the right to Introduction redress for harm suffered. The state of West Bengal in India is a Girls who have been forced into major source, destination and transit prostitution are often only permitted to In West Bengal, girls are often trafficked point for victims of trafficking. The leave if they find replacements. Even from villages with poor legal support Indian National Crime Records Bureau where girls fall pregnant, Madams insist structures. In many cases, police stations reports that in 2009 there were 160 that the girls’ children must remain are far away and the staff of community- registered cases of trafficking in West in the brothel to repay debts that are based organizations generally has poor Bengal, although the reports of both owed. Where girls are able to return to knowledge of the ITPA. Where girls and governmental and other actors suggests their families and communities, they are their families are referred to local lawyers, the actual number of trafficking cases frequently rejected, marginalized and the latter often compound problems, due is much higher. Within West Bengal, the vulnerable to being trafficked again. to lack of sufficient training and sensitivity districts of Jalpaiguri, Darjeeling, North to the issue. 24 Parganas and South 24 Parganas The Indian Constitution explicitly present particular challenges from a prohibits trafficking of human beings Furthermore, human trafficking is trafficking standpoint. Jalpaiguri and and forced labor, and makes both usually exacerbated by the lack of legal Darjeeling, which are located in the offenses punishable. Article 23(1) assistance services available to victims north of West Bengal, have long faced provides that: “(t)raffic in human beings and by the lack of awareness concerning problems of unsafe out-migration by […] and forced labor are prohibited the existing legal protection available individuals bound for Kolkata and other and any contravention of this provision to victims of trafficking. Victims and metropolitan cities in search of better shall be an offence punishable in witnesses of human trafficking are often employment opportunities. Kolkata is accordance with law.” The Immoral not aware of the mechanisms available to also generally considered as a major Traffic Prevention Act 1956 (ITPA) is obtain justice and redress. In addition, law trafficking destination and center for the main legal instrument addressing enforcement officials and judicial organs brothel-based prostitution, along with the trafficking of human beings in may not have adequate resources and Mumbai and Delhi. the country. The ITPA is focused training to ensure full victim protection. on trafficking for the purpose of It appears that girls are more prostitution. The ITPA also provides for The study on trafficking in India by NHRC vulnerable than boys to be the victims the rescue and rehabilitation of victims/ raises serious concerns regarding re- of trafficking. A 2003 study of trafficking survivors of trafficking, action against victimization of trafficked victims (the in Madhusudanpur, a village in South 24 exploiters and increased punishment for NHRC study).144 For example, girls are Parganas, showed that every second to trafficking offenses involving children. likely to be re-victimized in cases where third household in the village lives off they have been: the income of a trafficked girl between The extant law establishes a legal the ages of 13 and 15. It is reported framework for addressing human › charged with solicitation and/or with that traffickers in West Bengal have trafficking, but difficulties arise in the undocumented status; obtained access to girls by pretending enforcement of the laws. Prosecution › not notified of the charges against them; to be grooms without dowry demands. and convictions of traffickers is extremely › not informed about their legal rights; In other cases, trafficking has been challenging. Adequate training of law › not informed of the progress and facilitated by relatives or ‘friends’ of enforcement officers and immigration disposition of proceedings against their the victims, as well as teachers and officials, and enhanced competence to alleged traffickers; placement agencies. Girls who have act both within and across state borders, › kept in custody for long periods; and/or been exploited are also commonly used are fundamental elements in recognizing, › subjected to insensitive, traumatic to lure girls from source areas. A recent preventing and combating trafficking cross-examination in court.
143 This study provides a summary of two IDLO reports entitled Preventing and Combating the Trafficking of Girls in India Using Legal Empowerment Strategies (2011) and Final Report: Crossing the Hurdles: Strengthening the Legal Protection Framework for Girls in Developing Countries (2011) under the title ‘Project Report Phase II – Legal Awareness’
57 ACCESSING JUSTICE
THE TRAFFICKING OF GIRLS IN WEST BENGAL (continued)
The NHRC study found that victims and exploiters are commonly rounded off ›POLICE ACTION together by the police (sometimes along with non-governmental organizations REMAINS DEFICIENT (NGOs)), taken to the police station and IN THE FACE OF RAMPANT kept together during the registration 2 ‹ of a first instance report, as well as The intervention GIRL-TRAFFICKING during interviews and other processes In June 2010 IDLO, in partnership of investigation. This gives ample with SANLAAP145 in West Bengal, opportunity to the exploiters to terrorize sought to undertake a year-long the victims, and prevent them from legal empowerment project aimed speaking out and exposing the crimes. at preventing and combating child trafficking in the region (including cross- Under pressure from brothel keepers border trafficking), with a particular have to be either present at a given and other exploiters, girls tend to focus on the legal empowerment of girls rescue point, or have to be able to reach present themselves as adults. According who are victims of, or vulnerable to, the rescue point within a short time - to the NHRC study exploiters then: trafficking. ideally no longer than one hour after a victim asks for emergency services. For … lose no time in getting [the girls] Importantly, the project did not focus other non-emergency situations, legal released on bail […] to re-traffic them directly on providing legal counseling or paralegal experts have to be available back to the same or a different brothel. and assistance services to the girls; on a regular basis for consultations and Had they been held as children (under rather, it focused on capacity building assistance. 18 years of age), they would have come and creating a network of legal and under the purview of the [Juvenile Justice] paralegal officers who would in turn To achieve these objectives the Act, where the response mechanism is assist the girls. Specifically, the project intervention undertook a number of quite different. As per [this Act], trafficked was designed to ensure that rescued legal empowerment projects at the children are defined as children ‘in need of girls in the four key trafficking districts local, district and state level in West care and protection’ and […] are not to be of Jalpaiguri, Darjeeling, North 24 Bengal. These projects began with produced before a court of law. Parganas and South 24 Parganas were trainings at the local and district level provided with prompt, efficient and and later operated at the state level, It should also be noted that in the NHRC effective legal assistance. The objective while also seeking to raise community study, over half of females rescued from was to make girls more aware of their awareness through rallies. trafficking indicated that women police rights under existing laws, make legal officers were not present while they were assistance available to girls, and in At the local level, selected staff subjected to a body search, although this particular ensure that girls’ procedural members of a number of community- is required by law. More than 90 percent rights were guaranteed before, during based organizations (CBOs) were trained indicated that following rescue, they were and after all legal proceedings in which to work as ‘barefoot legal counselors’ not informed of their rights by the police. they were involved. A priority was to on trafficking laws and the problems provide legal/paralegal services as faced by girls who have been trafficked. Given the existence of anti-trafficking soon as possible after the need for such SANLAPP trainers emphasized the need laws, it is appropriate to consider services has arisen. The services were for gender-sensitive and child friendly whether legal empowerment could intended to be provided at the first and services in handling trafficking cases. be an appropriate strategy to improve most likely entry point for girls looking Trainees were provided with information, the implementation of formal laws to be rescued from trafficking situations, education and communication materials and thereby reduce the structural and typically in shelters, hospitals or similar highlighting specific provisions of cultural factors that provide an incentive rescue points. In emergency situations, trafficking-related laws. The training for trafficking to take place. However, as legal and paralegal support needs to also involved discussing the drivers of trafficking is accomplished by deceiving girls be provided promptly and efficiently. trafficking and outlining the existing and their families, legal empowerment In order for girls to be assisted child protection infrastructure. Contact of the victims of child trafficking is during police investigations, medical information for district protection significantly challenging, particularly in check-ups, the filing of police reports officers, child welfare committees and light of the widespread power imbalances or similar emergency post-rescue shelter homes was also provided. that are operative in this setting. situations, legal or paralegal experts
145 SANLAAP, a non-governmental developmental organization operating in West Bengal, has operated since 1987s to combat the trafficking of women and girls by providing shelter homes, advocacy, prevention, stakeholder sensitization (including training of police and prosecutors), rescue, restoration and rehabilitation of trafficked persons, and socio-economic reintegration.
58 IDLO
Local organizations were chosen on the basis of demonstrated success in addressing concerns within their communities. SANLAAP organized residential trainings for selected staff on the law related to trafficking and the rights of trafficking victims. This initiative supported the establishment of a cadre of individuals working at the grassroots level who are trained to provide girls rescued from trafficking situations with basic information concerning their rights. These ‘barefoot legal counselors’ were also involved in raising awareness in vulnerable communities on girls’ rights and actions that should be taken when girls are missing (i.e. lodging a first instance report with local police) and in disseminating information concerning existing statutory schemes and bodies meant to benefit trafficking victims. Following the trainings, girls who had been trafficked, as well as families of trafficking victims, were subsequently provided legal assistance and support Image: Sheila McKinnon by CBO staff and lawyers trained under the project. This involved assistance with trafficking prosecutions and the promotion of the safe repatriation of trafficking survivors. In parallel with district-level advocacy had been trafficked and their families to efforts, SANLAAP organized a state- assess their needs and to provide them Subsequently, selected lawyers in the level consultation in February 2011 in with information on their legal rights. four districts of West Bengal were Kolkata, designed to examine ways to trained to provide assistance to victims improve access to justice for victims Finally, legal awareness training for of trafficking in connection with legal of trafficking, including the question of female self-help group members,146 proceedings - for instance, where delayed court cases, difficulties in the legal awareness camps with the trafficked girls have been charged with prosecution of trafficking cases, and the residents of shelter homes, and legal crimes and where they are witnesses in need for changes in attitude vis-à-vis training of youth leaders were also trafficking prosecutions. The trainings, trafficking victims. It was also stressed undertaken. Discussions revolved which were informal and highly that those working in the anti-trafficking around the existing legal provisions interactive, included a discussion of field must receive additional training on in place to protect women and girls, the main legal provisions of relevance how to access justice mechanisms and such as the Domestic Violence Act for trafficking in India, as well as basic procedures and be made more aware of 2005, and how they could seek justice information on the Indian legal system, how to use anti-trafficking legislation for if their rights were violated. The aim including, notably, information on the the benefit of victims. of enhancing the knowledge of these difference between civil and criminal stakeholders was to sensitize and orient cases and the role of police and Rallies at the community level were these groups on trafficking related legal prosecutors. Public prosecutors and held in order to enhance awareness issues and to develop links between police officers operating in the districts of trafficking issues and to provide district based NGOs and CBOs, as well attended the trainings as resource basic information on how to obtain as to advocate on the legal rights persons, in order to help in creating an legal assistance in cases of trafficking. of the victims. anti-trafficking network. Consultations were held with girls who
146 Self-help groups are functional in almost all the West Bengal communities and are very active in supporting other women and children who face abuse and exploitation. It was understood that if they were aware of the legal issues, they could actively support the vulnerable women and children and could also help the restored victims.
59 ACCESSING JUSTICE
THE TRAFFICKING OF GIRLS IN WEST BENGAL (continued)
trafficker; twenty-two of the 28 girls alert and responsive towards them. surveyed using the polling booth method Overall, all the respondents said that agreed that it is a useful service and their confidence in dealing with the that they would recommend it to their police had increased since the training. friends. Furthermore, all the respondents 3 mentioned that following the training, Results analysis The evaluation staff visited the Sneha they were able to provide better The evaluation was conducted using Shelter home, a shelter operated counseling and assistance to victims mainly qualitative methods and tools by SANLAAP in Kolkata, and were of trafficking, domestic violence and including semi-structured interviews allowed to observe operations at the child abuse. and focus group discussions. The shelter and to better understand the evaluation sample was drawn from environment in which the girls lived and The legal training has also helped three areas — South 24 Parganas, their daily routine, as well as the types lawyers gain a better understanding North 24 Parganas and Kolkata. of services provided by the staff and and sensitivity of trafficking issues and counselors. The evaluators noted that has improved their knowledge on its A. Trafficked girls perceptions and legal counseling was scheduled to take related legal procedures. The lawyers improvements in justice outcomes place once a week and the girls seemed also mentioned that they became more During the project period, legal comfortable with the personnel. sensitive towards trafficking victims assistance was provided to 83 victims and empathized with them. The training of trafficking, sexual abuse/ exploitation B. Counselors and lawyers removed their negative opinions and and other violence and 69 girls were The project trained 39 barefoot legal feelings towards prostitution and has rescued from prostitution and other counselors from 23 CBOs and 16 staff motivated them to support the victims. exploitative situations. SANLAAP/CBOs members from SANLAAP. Additionally, However, according to the evaluation, aided in the arrest of 56 traffickers, they were able to train 40 lawyers, the services of these trained lawyers 18 of whom were convicted. which doubled the initial objective. were not used by all CBOs and there is The evaluation team met 15 barefoot a need to improve networking between A quantitative survey (the Polling legal counselors representing ten them. Booth Survey 11) was used to collect organizations. preliminary information in relation A weakness in the project was the lack to girls’ perceptions of the program. In the focus group discussions, all the of connections between the CBOs and Following the survey, each respondent counselors mentioned that the trainings the lawyers. Three lawyers mentioned was asked for their consent to increased their knowledge on legal that they barely knew the CBOs and participate in a focus group discussion procedures and that they were able to had never provided any legal advice to covering issues related to the use this knowledge to provide better them. The CBOs had not established a counseling and assistance they received. legal assistance. The consultations rapport with them or used their services Twenty-four out of the 28 girls involved also revealed that the project training after the training. The lawyers stated in the polling booth survey accepted to courses had facilitated rapport and that they were willing to provide legal participate in a focus group discussion. networking among the barefoot legal assistance to trafficking victims referred Both exercises were proposed because counselors. Additionally, the barefoot by the CBOs, but that not many cases the team was not sure if the girls would legal counselors learned about the had been referred to them since the have accepted to participate in a focus process of repatriation, suo moto training. One solution to this issue could group discussion, so the polling booth filing of cases, and alternative redress be to have regular networking events, was a discreet methodology used that mechanisms, such as approaching the such as quarterly/bi-annual meetings to allowed the evaluation team to capture Superintendent of Police or the District be held in which the CBOs and lawyers quantitative data on the beneficiaries Magistrate in case of police inaction. would discuss trafficking issues with the specific to legal services offered. The counselors gave examples of how aim of identifying ways to address them. they have put this knowledge into In addition the use of law enforcement Eighteen of the 28 girls surveyed said practice. agencies, the judiciary and lawyers was that they received legal counseling and/ valuable, yet could have been increased. or legal assistance from SALAAP and The barefoot legal counselors also The involvement and input of these the CBOs147 and eighteen agreed that mentioned that the increased knowledge agents would contribute to the delivery the CBO helped to file or follow up on and understanding of legal procedures of more quality services and, ultimately, the criminal complaint against their ensured that the police were more to the pilot project’s greater success.
147 Only 18 girls reported that they had received legal assistance and counseling services, as the rest of them have not filed or are not pursuing their court cases. As a result, they did not need and had therefore not accessed legal counseling and assistance provided under the project. These girls participated in the project legal awareness activities and were therefore included in the sample.
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law enforcement officers, public › sensitization, efforts to reduce the ’BAREFOOT COUNSELORS’ financial insecurity that often pushes BOOST EMPATHY TOWARD girls into trafficking, strengthening of community vigilance structures and TRAFFICKING VICTIMS – 4 intensifying birth registration efforts are ‹ Conclusion all essential components of the global AND PROSECUTIONS The intervention in West Bengal raises a effort to combat human trafficking. number of issues concerning the scope Furthermore, it requires action on and effectiveness of legal empowerment a range of fronts and not only in the projects for the international legal arena. As frequently observed, development community. First and poverty alleviation and the expansion of foremost, it reveals the importance opportunities for education are crucial Ultimately, in order to address women’s of local partner organizations in legal to the fight against trafficking, as are access to justice, social and cultural empowerment interventions. Not only do campaigns designed to address the issues need to be examined and they have considerable knowledge of the pervasive gender discrimination that considered as part of empowerment issue at hand, in this case trafficking, frequently causes girls to be regarded strategies, including structural they often have strong networks with as less worthy of care and protection. To problems such as poverty and lack of other CBOs and members of the this end, the case study indicates that education. By identifying these elements legal community. Associating with to be successful legal empowerment as part of the problem, development an experienced partner should be an strategies require coordination and initiatives can cast a wider net than essential part of the project design. cooperation from a wide array of just to focus on the girl victims, they participants. Legal education was not can stimulate policy changes and can The intervention further indicates the sufficient in the absence of a support encourage CBOs to assess family risk value in training local CBO staff to work structure to enforce victims’ rights. The factors which may lead to the selling of at the grassroots level as paralegals. same problem existed for the passing girls in the first place. The case study They should work in conjunction with the of legislation dealing with trafficking - illustrates that when multiple actors are lawyers to provide easy access to legal unless it was enforced by agents within engaged - victims, paralegals and CBOs, counseling and assistance services. the justice realm, it would provide little lawyers, police, and ultimately to the This two-tier system encourages easier change. In this particular intervention, judiciary – victims have a better chance access for the intended beneficiaries the combined use of ‘top-down’ and to realize their rights and entrenched to counseling at the village level and ‘bottom-up’ approaches proved to be the problems are more likely to speak to lawyers for further legal key element to maximize protection. to be effectively tackled. assistance.
Moreover, the participatory training methodology, easy-to-use resource material (drafted in the local language) and use of public prosecutors, lawyers and police personnel as resource persons are three factors that ensured that the training programs were effective. Programs should especially encourage the involvement of more women paralegal and legal experts. Key lessons that may be useful for legal empowerment programming:
(i) Legal education is not sufficient in the absence of a support structure to enforce victims’ rights. Addressing the problem of child trafficking in India requires a multi- (ii) Legal empowerment strategies require coordination and cooperation from a wide array of faceted approach, including the participants. When multiple actors are engaged - victims, paralegals and CBOs, lawyers, police, undertaking of legal reform to ensure and ultimately the judiciary – victims have a better chance to realize their rights and entrenched compliance with international standards problems are more likely to be effectively tackled. and protection for child victims. Training
61 ACCESSING JUSTICE
USING LEGAL EMPOWERMENT TO ADDRESS VIOLENCE AGAINST WOMEN IN AFGHANISTAN
the implementation of the law.150 A and the UN Assistance Mission in survey undertaken by IDLO in 2010 Afghanistan on the implementation of indicates that in some instances where the EVAW Law (‘the OHCHR/UNAMA bride stealing, honor killing and forced Report’) also documents the extensive marriages were reported to the police, use of mediation for domestic violence the police did not respond and the complaints. Institutions utilizing 1 151 Background matter remained unresolved. Even mediation practices ranged from the Violence against women in Afghanistan where the state brings acts criminalized Police Family Response Units to the remains a pervasive and deeply rooted under the EVAW Law before the court, Department of Women’s Affairs and the problem, taking wide ranging and judges may decide to prosecute such Afghanistan Independent Human Rights varying forms, from domestic violence, acts under the Penal Code or Shari’a Commission.155 sexual harassment and rape to law instead. This often results in the trafficking of women and children and perpetrator being acquitted, charges Violations of women’s rights take honor killings, among others.148 The being reduced to less serious crimes, place against a backdrop of a serious Afghan Constitution of 2004, domestic lighter sentences being imposed and shortage of legal professionals and legislation, in particular the 2009 Law women victims being accused of ‘moral justice resources in the country. Justice on the Elimination of Violence against crimes’.152 institutions, particularly in the provinces, Women (the EVAW Law),149 as well struggle to recruit and retain qualified as international obligations provide In fact it has been extensively legal professionals and women legal extensive protection for Afghan women. documented that women who seek to professionals in particular. IDLO However, many women have not been escape abusive relationships or forced research on women’s participation in able to benefit from such provisions marriage by running away are frequently Afghanistan’s formal justice system because of an acute lack of awareness jailed.153 Although running away is identified that in May and June 2010 among citizens and justice personnel not in itself a criminal offence under women constituted approximately 6 about fundamental rights and the Afghan law, women who do so are often percent of attorneys, 6.4-9.4 percent implementation of domestic laws. In imprisoned on the assumption that they of prosecutors and 4.7-5.4 percent of the case of the EVAW Law, even where either have committed, or will commit, judges.156 The low representation of illegal discriminatory practices are the offence of having sexual intercourse women in the justice sector has reported, widespread beliefs among outside of marriage (zina).154 been identified as one of the factors justice providers that such practices preventing women from coming are legitimate, or a family matter rather A 2011 report by the Office of the High forward, lodging complaints and than a legal matter, often undermine Commissioner for Human Rights seeking redress.157
148 IDLO, ‘Attorney General of Afghanistan and IDLO Launch Violence against Women Unit’ (Press Release, 18 March 2010)
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The prejudicial views by justice providers and the dearth of women in the justice sector are compounded by Afghanistan’s system of “extreme legal pluralism”.158 While reports vary, many experts believe that as many as 80 percent of all disputes in the country are resolved through the various informal justice systems.159 Largely composed of influential male elders, many of the informal justice systems operating in Afghanistan seek to preserve family units and prevent tribal and other conflicts from escalating, rather than protect individual rights and enforce the law.160 According to the OHCHR/UNAMA Report, many cases of violence against women, including serious crimes falling within the scope of application of the EVAW Law, are either withdrawn from the formal legal sector and/or ‘dealt with’ by these informal justice institutions, which rarely offer solutions that protect the victim from future harm.161 Image: Peter Cowe
Further these systems162 often condone prevalence of these practices OHCHR/ or even endorse discriminatory UNAMA have noted that many Afghans, ›AFGHANISTAN’S practices against women, such as the both women and men, strongly oppose exchange of daughters between families to them, particularly baad and child TRADITIONAL SOCIAL for marriage (baadal),163 the giving away marriage. The OHCHR/UNAMA Report CODES ARE PUNITIVE FOR of a girl or woman in marriage as blood also noted that these practices are more price to settle a conflict over murder frequent in areas where the government WOMEN, REGARDLESS or a perceived affront to honor (baad)164 exercises less authority or has lower ‹ and forced marriage.165 Despite the legitimacy.166 OF THE LAW
158 N Yassari and M H Saboory, ‘Shari’a and National Law in Afghanistan’ in J M Otto (ed), Shari’a Incorporated: A Comparative Overview of the Legal Systems of Twelve Muslim Countries (2010) 273. 159 See Centre for Policy and Human Development, Afghanistan Human Development Report 2007: Bridging Modernity and Tradition—The Rule of Law and the Search for Justice (2007) cited in J Dempsey and N Coburn, Informal Dispute Resolution in Afghanistan, US Institute for Peace, Special Report 247 (August 2010) 3. 160 OHCHR and UNAMA, above n 150, 26. 161 One case documented in the OHCHR/UNAMA Report highlights some of the concerns with the use of traditional dispute resolution for serious cases of violence against women. The incident took place in the Daikundi province and involved a man who stabbed his sister-in-law multiple times on 21 November 2010. She survived, was hospitalized, and the police arrested the alleged perpetrator. However, a few days later, authorities told OHCHR/UNAMA that the case had been resolved through the informal justice system with the assistance of community elders. Their resolution was a pledge from the man that he would leave his sister-in-law alone, with no prosecution taking place for the crime he committed. The prosecutor denied responsibility for this failure, blaming the police for referring the case to the elders. Ibid. 162 The term informal justice in Afghanistan generally includes shuras, a Dari word referring to permanent and quasi-permanent local councils, and jirgas, a Pashto term usually used for more ad hoc meetings gathered to address a specific dispute. US Institute for Peace, above n 159, 2. 163 OHCHR and UNAMA Harmful Traditional Practices, above n 148, vi. 164 Ibid. 165 Ibid. 166 Ibid 13.
63 ACCESSING JUSTICE
USING LEGAL EMPOWERMENT TO ADDRESS VIOLENCE AGAINST WOMEN IN AFGHANISTAN (continued)
after 30 years of war”, noting that the VAW Units are “critical to justice for the country”.167 As part of its activities in support of gender justice in the country, IDLO has also established the Legal 2 Aid Organization of Afghanistan (LAOA), 3 The intervention which is equipped with a specialized Results analysis IDLO has been working with the women’s section,168 and IDLO has According to the OHCHR/UNAMA Government of Afghanistan to improve carried out dissemination campaigns Report, comprehensive official statistics justice sector delivery since 2001. on the EVAW Law through media outlets on the number of cases of violence More recently this has been with the and education providers.169 These legal against women in Afghanistan are specific objective to improve awareness, empowerment activities have taken not available and most incidents go investigation and prosecution of crimes place in close co-operation with local unreported. Because of the absence of violence against women and girls, stakeholders and civil society so as of any baseline, measurable indicators in accordance with the EVAW Law. In to enhance their sustainability and or milestones, it is impossible to particular, IDLO has been working to: effectiveness. make an absolute statement about the degree to which IDLO’s objective › improve access to justice for women To support the process of attitude and of improving awareness, investigation victims of gender-based violence; behavioral change among informal and prosecution of crimes of violence › increase public awareness of the EVAW justice leaders towards ‘traditional’ against women and girls has been met. Law, particularly amongst women; and practices that condone violence against The difficulty of assessing impact is › improve knowledge on the EVAW women, IDLO set up a training program further compounded by the large scope Law among legal/justice sector for informal justice actors on Afghan of IDLO’s engagement in Afghanistan. professionals, civil society and informal and Shari’a law in two districts. To date, justice providers. a total of 197 participants attended Nonetheless, available data at this the training, with a high level of stage suggests that the interventions To improve awareness, investigation satisfaction in terms of its usefulness mentioned above have made and prosecution of crimes of violence to solve disputes and women’s rights considerable advances in improving against women and girls, IDLO has violations such as forced and underage women and justice providers’ knowledge supported the creation of the Violence marriage.170 The training addressed the of the EVAW Law and providing women against Women Units (the VAW Units) lack of information about Shari’a and with a user-friendly service to seek in the Attorney-General’s office. Since Afghan Constitutional law which is seen justice for violent acts. During its first the introduction of the first VAW Unit in as representing one of the major factors year of operation, the VAW Unit in Kabul Kabul in March 2010, the program has behind the use of traditional practices received 300 cases originating from expanded to include VAW Units in seven harmful to women in the informal 15 different provinces in Afghanistan. other provinces in Afghanistan. The setting. While small-scale, the apparent Throughout the year 2010, the number Afghan Attorney General has remarked success of this project highlights the of cases submitted to the Kabul VAW that the establishment of the VAW Units opportunities to reduce gender based Unit doubled from the first month to the is one of the “key achievements of violence through targeted and culturally last month. At the end of March 2012, Afghanistan in its new era of progress sensitive interventions aimed at the the total number of registered cases in informal justice sector. the Kabul VAW Unit was 869.
167 Cited in Italian Ministry of Foreign Affairs (MAE-DGCS) and IDLO, Supporting the National Justice Sector Strategy of Afghanistan: Improving Security, Legal Rights and Legal Services for the Afghan People Year II, Narrative Report, 1 July 2010 – 31 August 2011, (2011) 18. 168 The LAOA currently operates in over twenty of Afghanistan’s 34 provinces. It provides legal representation to women in criminal and civil cases, including adultery and violation of honor, running away from home, and divorce due to abuse. 169 For example, IDLO produced and distributed over ten thousand copies of the booklet “Know Your Rights and Duties: the Law on the Elimination of Violence against Women’”, available in Dari, Pashto and English. The booklet, the first of its kind in Afghanistan, describes the crimes against women covered by the EVAW Law with illustrations to explain the law to women of limited or no literacy. It also includes telephone numbers of the entities that women can contact for help. 170 See results contained in IDLO, IDLO Quarterly Report April – June 2012: Support to Local Justice in Kapisa and Surobi – Government and Traditional Actors’ Legal Training SCS/2011-22 (20 July 2012) 13.
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Chart 1: Number of Cases Received by the Kabul VAW Unit 2010-2011 ›THE LAW ON ELIMINATING VIOLENCE AGAINST WOMEN AND THE VAW UNITS ARE 700 SLOWLY ERODING WHAT 600 REMAINS AN OPPRESSIVE 500 SETTING‹ 400
300
200
100
0 2010 (Jul-Sep) 2010 (Oct-Dec) 2010 (Jan-Mar) 2011 (Apr-Jun) 2011 (Jul-Sep)
By June 2012, this number increased to here (VAW unit). This unit assists me with The other woman, who had been traded 1175.171 Chart 1 indicates the increase my case, and as a first step I need to go as a bride to settle a dispute, said “I came in cases received by the Kabul VAW Unit to Huquq (Rights) department, then court, here despite many difficulties because during its first year of operation.172 because I want to get a divorce.”173 I heard some messages [on the radio] that said if a woman is under torture and While there is no precise indication of Other accounts from users of the violation then there is the VAW unit to how many of these cases proceeded service are also instructive: support and protect her from injustice.” 174 to prosecution, a recent evaluation of the IDLO project highlights the positive “Two brave women seeking assistance The breakdown of offenses/categories impact of the VAW Units on women and recently went to a radio station in Balkh of crimes of the cases reported to the girls in Afghanistan, citing the following province after hearing a Public Service VAW Units between January-March account: Announcement (PSA) about the new VAW and April-June 2012 are reflected in unit. Radio spots are running daily in the the table below. These cases were “I got married 10 years ago and my provinces where the new units are located, reported from the VAW Units in Kabul, husband is illiterate. The problem is announcing the openings and providing Herat, Balkh, Parwan and Kapisa and because we don’t have child. I always contact information for women who may the new VAW Units of Nangarhar and concealed the violence of my husband need legal help. One of the women was Badakhshan.175 from my family. I have the doctor’s crying and covered in bruises. She said document that he beats me, and when I she had been forced to marry an older man went to clinic center they referred me to who beat her regularly. The manager of the radio station took her to the new VAW unit.
171 IDLO, Supporting the National Justice Sector Strategy of Afghanistan – Improving Security, Legal Rights and Legal Services for the Afghan People: IDLO Quarterly Report April-June 2012, (2012) 10. However, due to challenges in data entry an updated analysis of convictions, acquittals and appeals is pending. 172 Supporting the National Justice Sector Strategy of Afghanistan: Improving Security, Legal Rights and Legal Services for the Afghan People Year II, Narrative Report, 1 July 2010 – 31 August 2011, above n 167, 16. 173 IDLO, Supporting the National Justice Sector Strategy (NJSS) of Afghanistan: Improving Security, Legal Rights and Legal Services for the Afghan People: Mid Term Evaluation Report, January 2011 – December 2012 (2012) Unpublished. 174 IDLO ‘Courageous Women Seek Justice Through New Violence Against Women Units in Afghanistan’ (Press Release, 28 November 2011)
65 ACCESSING JUSTICE
USING LEGAL EMPOWERMENT TO ADDRESS VIOLENCE AGAINST WOMEN IN AFGHANISTAN (continued)
Crime type January-March 2012 April-June 2012 Beating 166 235 Unclassified domestic violence 7 1 Running away/moral crime 2 1 Harassment 17 33 Threats n/a 20 4 Conclusion Sexual assault 14 10 The challenges facing women’s Murder 11 6 access to justice in Afghanistan are Kidnapping 2 4 not amendable to quick fixes. IDLO’s Suicide n/a 3 activities in Afghanistan, particularly Cancellation of engagement n/a 5 in relation to the VAW Units, reflect the complexity of using legal empowerment Failure to pay alimony n/a 8 tools in an environment where Forced marriage/Baad 3 8 discriminatory social codes and a Other 34 25 preference for informal mediation TOTAL 256 375 are deeply entrenched.
Notwithstanding these early indications › lack of trust in VAW Unit prosecutors; Nonetheless, tentative indicators of the success of the intervention, › disputing parties’ requests to settle cases of success, including continually significant challenges have been unofficially, through mediation or a jirga; increasing rates of crime reporting to documented in relation to some of the › difficulties with prosecutors’ perceptions the VAW Units, indicate the critical role VAW Units, including: of their role, including an understanding such services play in providing women that they are ‘mediators’; and with an opportunity to seek justice. › lack of transportation for women › lack of information related to the to attend the VAW Unit; role of the VAW Unit in the community. By targeting decision makers in the formal and informal justice sectors, as Key lessons that may be useful for legal empowerment programming: well as the women themselves, IDLO’s (i) Legal empowerment programs to address violence against women in plural legal settings are approach in Afghanistan highlights optimized when they are undertaken in conjunction with programs targeting decision makers in the the value of a holistic and context- formal and informal justice sectors. sensitive strategy to address violence against women.
66 IDLO
NEGOTIATING LAND TENURE: WOMEN, MEN AND THE TRANSFORMATION OF LAND TENURE IN THE SOLOMON ISLANDS176
his final case study examines Other influences, such as the influx the interaction of customary of foreign companies and Christianity tenure systems with the state have reformed tribal power structures Tlegal system in a particular for making decisions about land. What peri-urban area of Honiara, the capital once was much more of a community of the Solomon Islands. Unlike the decision has become controlled by a previous case studies, the discussion small number of men, to the exclusion below focuses on the interface between of most other members of the the state and non-state systems from landowning group. a historical perspective, rather than a purely project intervention viewpoint. Historically, before the influx of colonists, kastom had three important In the Solomon Islands, customary land people in positions of power. One is the dominant form of land tenure, of them, the vuluvulu, was always with more than 80 percent of land held supposed to be a female and she was according to customs that vary from consulted on issues related to land, place to place. Landlessness is virtually war, and witchcraft. Interactions with unknown, but the recognition of rights European traders, who only wanted to to land by the state legal system and deal with men, diminished the influence the distribution of financial benefits of women. Additionally, the failure of associated with these rights are a the state legal system to accord any Image: GlobalCitizen01 source of significant concern for many recognition to the role of vuluvulu women and men. contributed to the marginalization of the connection between women and Kastom, the Pijin term which is the land, at least within the arena of generally used to refer to local norms the state. This had implications for the and practices, varies throughout the role of women in the society, which excluded. Of the dozens of court records Solomon Islands, not only from island to continue today. reviewed, none listed women as parties island, but even between villages. or witnesses in timber rights hearings Land is not merely an economic asset Forested land in the Solomon Islands or court appeals. Some women report for Solomon Islanders, but has spiritual, is usually subject to multiple and that they have attempted to attend political and social significance. Land overlapping rights. Logging companies hearings and have waited on the bench is vested in exogamous kin-based have focused their efforts on negotiating for hours for this purpose, only to be groups whose linage may be traced to with individuals that are influential told that “there’s only room for men, an original settler through the mother, within the landowning group and there’s no room for any women”. father or both. Access to knowledge proponents of logging. These individuals Women’s names are absent from the about certain aspects of kastom can be are nearly always men, some of whom official documents and agreements passed on in a controlled and deliberate are male leaders and some of whom produced by the state legal system. manner. For example, information about are younger, entrepreneurial individuals This confirms and constructs women’s genealogies may be given to a particular with a relatively high level of formal role in decision-making agreements as people, rather than readily available education. marginal, at least within the arena of the to everyone. Women are not selected state; while simultaneously reinforcing to receive this information as often as While many men are marginalized by the dominance of a small number of men, and this places them at a power these processes, women as a social men in decision-making for the entire disadvantage when seeking to control land. group are particularly likely to be landowning group.
176 The full text of this case study, including references, is found in R Monson, ‘Negotiating Land Tenure: Women, Men and the Transformation of Land Tenure in Solomon Islands’ in S Golub (ed), Customary Justice: Perspectives on Legal Empowerment IDLO (2011) 169-185.
67 ACCESSING JUSTICE
NEGOTIATING LAND TENURE: WOMEN, MEN AND THE TRANSFORMATION OF LAND TENURE IN THE SOLOMON ISLANDS (continued)
Missionaries and colonial administrators During the 1980s and 1990s, a number may not have intended to ‘rewrite’ of disputes concerning land in west ›IN A NATION WHERE LAND kastom, but by empowering a certain Kakabona came before the chiefs and segment of the bush polity and courts. These disputes were often OWNERSHIP IS CRUCIAL, disregarding others, like the vuluvulu, triggered by attempts to register blocks THE MARGINALIZATION political authority and control over land under the LTA, and usually concerned has become concentrated in the hands the boundaries and “ownership” of OF CUSTOMARY LAW HAS of the male leaders. the land. Historically, land tenure on WORKED AGAINST WOMEN, the Solomon Islands largest island, Case study on Kakabona Guadalcanal, was characterized by a NOT FOR THEM‹ Kakabona refers to a series of peri- complex web of nested and overlapping urban villages strung out along the interests in land, with particular tribes distributing the proceeds of sale. As a coastline and the Tandai Highway as living in close proximity to one another result, land transactions are often highly it runs west from Honiara, between and intermarrying. However the controversial and a significant source White River and Poha River. Kakabona requirements of the LTA meant that land of conflict. is densely populated. The bulk of the acquisition officers, chiefs and courts population is located relatively close are now required to identify which of While women are rarely listed as to the coastline, in the narrow strip of these groups “own” the land. Other land trustees and are largely absent flat land between the beach and the groups are often described as “living from records of public hearings, they foothills. On the eastern side, close to under” the “owners”. In some cases, nevertheless play a role in determining the town boundary, numerous parcels the land was later registered under the access to and control over land. There of land have been registered under the LTA and in the name of a maximum of is much that occurs beyond the purview Land and Titles Act 1996 (LTA). These five “duly authorized representatives” of the state. Women influence land parcels are registered in the names of of the landholding group, who are joint transactions and court disputes through a small number of male leaders who owners on a statutory trust. These informal conversations, particularly are representatives of the landowning representatives are, with few exceptions, with their husbands, brothers and tribe. Land around the Kongulai the individuals that appeared before uncles. Many of the women consulted in water source, which provides most land acquisition officers, chiefs and Kakabona believed that they were more of Honiara’s water supply, has been courts on behalf of the successful tribe; likely to be consulted in land matters registered in a similar manner. in the vast majority of cases, they are if they had extensive knowledge of male leaders. Thus, the individuals kastom. For example, a recent instance A man is usually appointed as the who have the authority to speak about in which a woman’s knowledge of spokesperson for the family and kin land within the arenas established by kastom and genealogy appeared to group on all land-related issues. These the state are able to consolidate that show women’s influence in preventing spokespersons are often described, authority through registration. the sale of land: in Pijin, as having the “ability to talk”. Since women often have less access It is a principle of both kastom and the A businessman in Honiara tried to to education than men, they are less state legal system that the trustees of buy the Kongulae water source, likely to possess the skills necessary land consult with the other landowners which provided water to the Honiara to negotiate the state legal system and before dealing in the land. There is township. He used his mother, who is manage land transactions. People in evidence, however, that trustees have from Guadalcanal, to pay each of the Kakabona often explain that women often failed to fulfill this obligation. Land landowners US$50,000 to transfer to must “stand behind” the men when in Kakabona has often been sold to him their rights to the water source. it comes to speaking about land and migrants from other areas, as well as to Payments were made to all the men dealing with land in the public arena. local landowners who wish to establish who for the transaction were deemed This norm is often explained by new hamlets or gardens. Many of these principal landowners, but when a reference to the role of men as warriors sales have been made by trustees, particular woman’s uncle’s turn came, and protectors of women. Today, these although other members of landowning he turned to his niece for a decision. concepts are being translated into the groups have also sold land. These This was her response: state legal system in a manner that transactions are often illegitimate in turns the customary “right to speak” the eyes of many landowners, because “If you sell my land right, you have sold about land into effective control over deals are often struck by individuals in my great, great grandmother, my great land. exchange for cash, without adequate grandmother, my grandmother, my consultation of other members of mother and me to this businessman. If the landholding group and without you respect my ancestors who are your ancestors also, then you will not sell my right to Kongulae water source.”
68 IDLO
This woman’s words were influential in the final decision: the Kongulae water source was not sold to the businessman.
This woman appears to have successfully drawn on kastom, in particular her knowledge of genealogy (tutungu) andthe idea of land being passed through women, in order to persuade her uncle not to sell the land. Information about certain aspects of kastom appears to be more closely guarded in Kakabona and some information may only be handed down to men.
Nevertheless, there are also many aspects of kastom that can be learnt by women. In 2009, the author, together with the Landowners Advocacy and Legal Support Unit in the Public Solicitors Office, held a participatory legal literacy workshop on natural resource management in Kakabona. Image: Slider_1980 During the workshop, women openly discussed the fact that they are not male leaders have reached a decision. of trustees, all of whom appear to be as knowledgeable of tutungu as their If such decisions have been entrenched members of a relatively small group mothers and grandmothers were. They in signed agreements or in court of male leaders. The role of traditional traced this to a number of factors, decisions, it may be difficult to challenge “big men” or chiefs has carried over into including involvement both in the them due to state legal norms and due the cash economy, which is important subsistence and cash economies, as to many people’s hesitation to challenge for negotiations and in the signing of well as in activities run by donors, leaders in formal settings, such as court agreements providing access to the non-government organizationsand appeals. All of this contributes to a trend Kongulai water source. The men who churches. These activities limit the whereby the belief that “women no save are listed as leaders on the official ability of many women to engage in the tok” (“women should not/cannot talk”) documents and agreements are also time-consuming task of learning about about land limits the role of women in those who receive royalties when they kastom. The women acknowledged that the legal system and strengthens the are distributed. Under both the state this contributes to the likelihood that it control of tribal elders over land. legal system and kastom, they are will be men, rather than women, who obliged to share these benefits with speak in public fora, as it is often men Many of the residents of Kakabona are other members of the landowning who have the knowledge of kastom members of landowning groups that are group. However, as is the case with necessary to make a case in court involved in logging and have had difficult logging, there is a general lack of hearings. One of the outcomes of these experiences in the decision-making transparency and accountability as to discussions at the workshop was a processes and ensuring the distribution how this occurs. Landowners complain resolution by the women to take active of financial benefits. The distribution that they do not know when royalties are steps to learn more about tutungu. of benefits from other resource uses distributed or how much money they is similarly problematic. The Kongulai are entitled to. Most women need to be However, even if women have extensive catchment, more commonly known as vigilant if they want to receive a share of knowledge of tutungu and other aspects the Kongulai water source, is a case royalties associated with either logging of kastom, their participation in land in point. or the Kongulai water source. News that matters may be constrained by the a payment will be made is often passed consolidation of the customary role of The Kongulai water source lies to the by word of mouth. As a result, women male leaders within the realm of the west of Honiara and provides about may travel into Honiara and spend state legal system. Many women report 70 percent of the city’s water supply. several days sitting outside the office that they find out about the details of a Land in this area has been divided into buildings where payments are made. land transaction or dispute only after parcels and registered in the names
69 ACCESSING JUSTICE
NEGOTIATING LAND TENURE: WOMEN, MEN AND THE TRANSFORMATION OF LAND TENURE IN THE SOLOMON ISLANDS (continued)
They report that it is necessary for them state legal system or international ability in relation to land matters. For to be there when their male relatives human rights standards. example, in the field site considered, emerge with money; otherwise, “they transparency and accountability for will just drink it and eat it.” In the years since the Tensions, similar the distribution of royalties might be strategies appear to have been adopted improved if they were highly public and The inequitable distribution of financial by Guadalcanal landowners seeking advance notice was given to all landown- benefits is related to inequality in deci- to expand the role of women in land ers pending royalty payments. sion-making. Male leaders have been matters. For example, one Guadalcanal registered as the trustees and therefore woman believed that the role of women › While attention must be paid to the assume control of negotiations with Sol- has expanded since the Tensions be- intersection of kastom with the state, omon Islands Water Authority. Women cause many people have realized that the case of Kakabona demonstrates that do not appear to be adequately consult- it is a “sin” to exclude them from women may be more likely to draw on ed in decision-making or informed of land matters: informal systems based on kastom and royalty distributions. This is a common Christianity in affirming their roles in re- feature of resource-dependent indus- “God made Adam and Eve, and it is a lation to land, dispute resolution and the tries in Solomon Islands. Initial research Christian principle that women should distribution of financial benefits, rather by the author also suggests, however, be included in decision-making regard- than human rights law. Efforts could that some landowning groups may ing land. It is a sin to not include women. therefore focus on increasing women’s have more transparent and inclusive When we sin, there will be consequences… experience and understanding of these methods of decision-making, dispute- and now we’ve seen what those conse- systems of knowledge. resolution and distribution of financial quences are.”177 benefits than others. Further research › In the context of Solomon Islands, where is required to determine whether this is The case study demonstrates that land land reform is on the agenda of the the case, and if so, why. tenure in Solomon Islands is character- national government and donors, there ized by a highly complex and dynamic in- is an urgent need for further research When violence escalated in mid-2000 terplay of kastom, Christianity, and state into the operation of local norms and (the Tensions), the volunteer Women laws and institutions that varies from practices, which arguably play a more for Peace Group was formed with the place to place. While this institutional significant role in determining women’s aim of enabling women to contribute to and normative plurality provides ample rights to land. the peace process. Their activities and scope for the renegotiation of tenure, strategies drew on customary practice, the examples cited clearly show that In summary, to develop sustainable cultural values (particularly the idea of some people, generally men, are better changes for women’s legal empower- ‘women as mothers’), and principles equipped than others to influence the ment it is necessary to understand the inspired from Christianity. For example, direction of those renegotiations. full cultural and historical context of the in some cultures in Solomon Islands, societal structure within which they live. women may intervene in conflict both Three key messages emerge By doing so, NGOs can easier identify physically and verbally, and Women for from this case study: key cultural elements, such as kastom Peace members drew on this approach and vuluvulu, that may be used in aiding to physically stand between warring par- › Neither kastom nor the state legal women achieve their social and legal ties. Women also visited the camps of system provides adequate mechanisms goals. militants, where women and militants for ensuring transparency and account- (predominantly young men) shared food, prayed together and discussed issues, such as the consequences of the violence for women and children. Women for Peace also held confer- Key lessons that may be useful for legal empowerment programming: ences and meetings with police officers, (i) Women may be more likely to draw on informal systems such as kastom and Christianity in parliamentarians and foreign diplomatic affirming their roles in relation to land, dispute resolution and the distribution of financial benefits, missions. Prayers and Bible readings rather than human rights law. Efforts could therefore focus on increasing women’s experience and were always an important part of these understanding of these systems of knowledge. meetings. It is noteworthy that the strategies adopted by Women for Peace (ii) To develop sustainable changes for women’s legal empowerment it is necessary to understand the full cultural and historical context of the societal structure within which they live. By doing so, in affirming women’s roles in dispute NGOs can easier identify key cultural elements that may be used in aiding women to achieve resolution and peace-building drew on their legal goals. kastom and Christianity, rather than the
177 Ibid 181.
70 IDLO
SUMMARY OF CASE STUDIES
Gender equality on the horizon: Negotiating land tenure: the transformation of customary “rights The case of Uukwambi Traditional Women, men and the transformation to speak” into effective ownership. The Authority in Namibia of land tenure in the Solomon Islands concluding section makes some general observations about the interaction of egal development cooperation and issues are currently high custom and the state, and the ways in increasingly emphasizes that legal on the agenda of national which women may be empowered Lempowerment can only be achieved Lgovernments and donor agencies within these systems. when reforms incorporate customary throughout the South Pacific. At the justice systems. This brings to the center of debates about land in the fore pertinent questions regarding the Pacific lies an issue common to many Bush justice in Bougainville: alignment of these systems with human post-colonial countries, namely, Mediating change by challenging rights standards. A typical concern is the interaction between customary the custodianship of custom that customary justice systems often and state legal systems. In most lack gender equality. The dominance of South Pacific nations, constitutional ince 1994, the Papua New Guinean men in all three interwoven domains of or statutory law expressly provides non-governmental organization, customary rule — leadership, dispute that land is governed by “custom” or SPeople and Community settlement and normative content — “customary law”. Empowerment Foundation Melanesia, raises questions on how the inclusion has delivered dispute resolution training of women in customary structures of Compared to other geographic regions, aimed at strengthening customary administrative and judicial decision- the gendered aspects of land tenure, justice systems in Bougainville. making might be facilitated, and how or natural resource management Research was conducted in 2010 to customary norms can be modified so more broadly, have received only very assess whether and to what extent that they better protect women and their limited attention in the South Pacific. such training has been successful in livelihoods. To gain insight into these In the Melanesian nation of Solomon enhancing the legal empowerment of questions, this case study explores a Islands, very little of the research on marginalized groups such as women. range of activities undertaken by the land has been undertaken by women, The research focused on six access Traditional Authority of Uukwambi in or focused on differences in men’s and to justice indicators: participation northern Namibia to eliminate the women’s perspectives and experiences and satisfaction in dispute resolution; severe gender inequality inherent in of land tenure. There is, therefore, a protection of legal rights; mitigation its system of customary justice and general lack of accessible information of power asymmetries; operation of administration. These activities include on women’s experiences of customary neutrality and bias in decision-making; the installation of women traditional and state laws governing land, or on balance of individual and community leaders, the promotion of women’s the ways in which women might be rights; and the influence of women in active participation in traditional court empowered within these systems. dispute resolution decision-making. meetings, and the modification of The research found that the training customary norms that were detrimental This case study examines the interaction increased the participation and to the position of women. The research of customary tenure systems with the satisfaction of both men and women data collected indicates that these state legal system in one site in the users of the dispute resolution system. steps led to certain positive changes Solomon Islands. It focuses in particular However, by neglecting to address in customary practice, including the on transformations in customary issues of substantive legal rights and near complete eradication of ‘property systems occurring since colonization, power asymmetries, the intervention grabbing’ and increased participation of and the impact of those transformations failed to enhance legal empowerment women in traditional courts. Although on women. The case study examines to the extent it might otherwise have the shift in mindsets needed for gender some of the ways in which kastom done. Further, while the intervention equality is still incomplete, the initiatives and the state legal system interact in improved the justice experience of undertaken have enhanced the fairness Kakabona, a peri-urban area on the women disputants in almost every area, and equity of traditional rule and outskirts of the capital of Honiara, on it had a neutral effect on the satisfaction customary dispute settlement. north Guadalcanal. The state legal gap between men and women. The system requires that landholding groups intervention was most successful where be represented by a small number it transferred dispute resolution skills of individuals. In practice, this has to women and created opportunities concentrated control over lands in the for them to become mediators. This hands of a small group of male leaders enabled them to engage more effectively who have the customary authority to in internal dialogue processes and discuss land matters inside a public challenge the interpretation and arena. The interaction of kastom and the application of discriminatory state legal system has therefore enabled customary norms.
71 ACCESSING JUSTICE
SUMMARY OF CASE STUDIES (continued)
Engaging with customary law to create development and the current trend empowerment can be impossible. In scope for realizing women’s formally of gender discriminatory land and focusing on child registration and the protected land rights in Rwanda inheritance customary practices procedures to receive a Family Booklet have prompted domestic civil society as they affect unwed mothers, this case n rural Rwanda, women, particularly organizations in developing countries to study argues that law and development widows and divorced women, face use statutory provisions guaranteeing initiatives should take into account Isevere obstacles protecting and gender equality to improve women’s complex, intimidating legal realities upholding their interests in land, land tenure security. This case study that disadvantaged populations such resulting in diminishing land tenure examines the particular need for as these women and children face. security. Women have weak rights under secure land rights for women in the This includes existing laws that may customary law, and while reforms have African pluralistic development context, not be applied in reality, that are strengthened their statutory land rights, and the mixed results of targeting discriminatory on their face, that are such entitlements have limited practical law reform as a mechanism for unclear and open to disparities in their value in rural areas where customary change. Relying on primary research interpretation or that are silent on an law dominates. Research was launched conducted in Mozambique and the issue and thereby create legal voids. to investigate the types of interventions United Republic of Tanzania on land that might improve the likelihood that practices as experienced by divorced Four youth-led local women’s rights women’s land interests would be upheld and widowed women, it evaluates NGOs, in collaboration with an in the context of customary dispute strategies employed by domestic international human rights capacity- resolution. It was hypothesized that non-governmental organizations to building organization, implemented women would receive better outcomes enhance women’s access to justice and grassroots-level legal rights education if land-related disputes were resolved land tenure security. In particular, the in diverse regions across Morocco and consistently at the village level, case study analyses whether initiatives launched a pilot Court Accompanying through mediation by a wider group of to disseminate and use statutory Program in 2006 primarily for stakeholders, including representatives law (rather than customary law) are illiterate women in their respective of a women’s interest group. The overcoming the lack of knowledge, communities. Initial indicators of the results demonstrate that it may be application and enforcement that have impact of these two initiatives hint at possible to widen the scope for women’s previously limited the effectiveness of shifts in attitudes and behavior among land claims without modifying the rights-affirming legislation. Specific and unwed mothers and local authorities substantive aspects of customary law, general conclusions are drawn from the charged with helping them access their provided that such outcomes do not sit data to generate recommendations for legal rights. too uncomfortably with the overarching donors, governments and development structure of the customary framework. institutions. The popular discourse in Morocco claims that the main obstacle to people making use of their rights is their Two faces of change: Legal empowerment of unwed ignorance of the laws and their rights, The need for a bi-directional approach mothers: experiences of which could be remedied by legal to improve women’s land rights in Moroccan NGOs education campaigns. The experience plural legal systems of these NGOs working with unwed ocial stigmatization, criminal mothers illustrates how knowledge of he complex relationship between repression and legal the laws alone is not sufficient. In order law, land rights and customary Sdiscrimination marginalize to access their rights, women need Tpractices is increasingly unwed mothers and their children and concrete help in navigating government recognized as foundational to impact on their ability to obtain official services and bureaucracies that are formulating successful development identity papers. Without such legal often indifferent, intimidating or even policies. Similarly, the essential role identity, they cannot access a host of hostile. of women’s economic participation in other fundamental rights, and legal
72 IDLO
The trafficking of Empowerment Strategies a short-term girls in West Bengal pilot project aimed to ensure that girls who are victims or at risk of human he Indian state of West Bengal trafficking have access to relevant legal is, like India as a whole, a major and regulatory systems to protect and Tsource, destination and transit realize their rights. point for victims of trafficking, largely due to porous international borders with Bangladesh and Nepal. Addressing Violence against women the problem of child trafficking in India in Afghanistan requires a multi-faceted approach, including improvement of law iolence against women in enforcement capacity and infrastructure, Afghanistan remains a pervasive public sensitization, efforts to reduce Vand deeply rooted problem, taking the financial insecurity that often wide ranging and varying forms, from pushes girls into trafficking and the domestic violence, sexual harassment strengthening of community vigilance and rape to trafficking of women and structures. Many anti-trafficking children and honor killings, among initiatives have been developed in recent others. The Afghan Constitution of 2004, years, but the scope of such initiatives domestic legislation, in particular the is often limited, with much of the formal 2009 Law on the Elimination of Violence administrative machinery for addressing against Women (the EVAW Law), as well trafficking not put into practice. as international obligations provide a wide range of protections for Afghan Image: Sheila McKinnon One of the most formidable trafficking- women. related challenges in India relates to rights awareness and legal assistance. Many women have not been able to The Indian Constitution explicitly benefit from such provisions because imposed and/or women victims being prohibits trafficking of human beings, of an acute lack of awareness accused of ‘moral crimes’. and domestic legislation (notably among citizens and justice personnel This case study features IDLO’s the Immoral Traffic Prevention Act about fundamental rights and the efforts to improve access to justice 1956 and the Indian Penal Code 1860) implementation of domestic laws. In for women in Afghanistan through addresses many trafficking and related the case of the EVAW Law, even where increased awareness and support for offences. While such legislation is not illegal discriminatory practices are the implementation of domestic laws comprehensive, and would benefit reported, widespread beliefs among on violence against women. It explores from revision to ensure its compliance justice providers that such practices the effectiveness of the Violence against with international standards, the more are legitimate, or a family matter rather Women Units in the Attorney-General’s immediate problem is the widespread than a legal matter, often undermine office, and the impact of a small-scale lack of awareness regarding the existing the implementation of the law. Even pilot project to train decision-makers in protections for trafficking victims where the state brings acts criminalized the informal justice sector. Preliminary contained in these legal instruments. under the EVAW Law before the court, findings suggest that the interventions This has serious implications for judges may decide to prosecute such have made considerable advances in justice delivery. acts under the Penal Code or Shari’a improving legal awareness among law instead. This often results in the women and justice providers, and in This case study focuses on IDLO’s acquittal of perpetrators of gender providing women with a user-friendly Preventing and Combating the crimes, charges being reduced to less service to seek justice for violent acts Trafficking of Girls in India using Legal serious crimes, lighter sentences being committed against them.
Acknowledgments IDLO would like to acknowledge the contribution of the expert reviewers whose comments and insights greatly improved this report: Miriam Estrada-Castillo, former member of the CEDAW Committee, Visiting Professor, Raoul Wallenberg Institute of Human Rights and Humanitarian Law; Gita Gopal, Gender and Law Specialist, Trivandrum, India; Rashida Manjoo, Department of Public Law, Law Faculty, University of Cape Town, South Africa; Faustina Pereira, Director, Human Rights and Legal Aid Services Programme, BRAC; Shelley Inglis, Policy Advisor/Team Leader Rule of Law, UNDP; Hassiba Hadj Sahraoui, Middle East and North Africa Deputy Director, Amnesty International. IDLO is grateful to Erica Harper for her contribution to the first draft of the report, to Renee Chartres for her input into the final report and to the following researchers for their work on the field case studies: Naomi Johnstone, Amrita Kapur, Marco Lankhorst and Muriel Veldman, Rebecca Monson, Janine Ubink, Stephanie Willman Bordat and Saida Kouzzi. The final report was the work of a team of IDLO staff and consultants led by Ilaria Bottigliero, Acting Director of Research and Policy.
73 The International Development Law Organization (IDLO) is an intergovernmental organization devoted to empowering people and enabling governments to reform laws and strengthen institutions to promote peace, justice, sustainable development and economic opportunity.
IDLO works along the spectrum from nation- and peace-building to economic recovery in countries emerging from conflict or striving towards democracy. It supports emerging economies and middle-income countries to strengthen their legal capacity and rule of law framework for sustainable development and economic opportunity.
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ISBN Number: 978-88-96155-09-7 | Library of Congress Control Number: 2013932052