Reinventing the Rules

Discover the Latest Innovations and Lessons Learned in Rule of Law and Legal Empowerment Projects

Report on Access to Justice Programs for Women in Africa and Asia

Credit: UN photo

Credit: UN photo

A new study by the International Development Law Organization (IDLO) on Access to Justice explores challenges and solutions for women in Afghanistan, India, Namibia, Rwanda, Mozambique, Tanzania, Morocco, Papua New Guinea and the Solomon Islands.

The IDLO report discusses the structural and cultural barriers women face in accessing justice, such as insufficient knowledge of rights and remedies, illiteracy or poor literacy, and a lack of resources or time to participate in justice processes.

Read a few excerpts below:

Efforts to Reform the Law & the Informal Justice System: 

Attempts to reform the formal law or improve the informal justice system “have had minimal success. The limitations are largely based on the same factors, including resource constraints within the justice sector, cultural biases among those responsible for upholding the law, women’s economic dependence on men, and discriminatory social codes. An alternative [and successful] strategy to strengthen efforts to improve women’s access to justice [in informal and formal justice sectors] is to integrate legal empowerment components into broader law reform projects aimed at providing women with quality justice…”

Types of Legal Empowerment Activities: 

“Typical legal empowerment activities include legal education, legal aid services, support for non-discriminatory alternative dispute resolution fora to complement or supplement customary systems, training of paralegals, and rights awareness for disadvantaged and marginalized groups. Such activities often focus on the legal obstacles of most critical importance to strengthen the livelihoods of the poor, such as access to land, employment and micro-credit…”

Whether legal empowerment approaches are effective “depends upon a variety of situation-specific factors, including, among others, social norms, a strong rule of law culture, socio-economic realities and national and geo-politics…Practitioners [must] possess in-depth knowledge of the target country, its people and the legal system (both formal and informal) so as to ensure that interventions are effective and sustainable.”

How to Address Inequality and Discriminatory Social Norms in Informal Justice Systems

“The development community [should] seek greater input on the views of local women’s organizations, justice seekers and community groups in order to determine whether equitable mediated solutions might ever be considered possible in communities where disputants have gross power differentials, discounting the power interest the systems already embody. [However] engagement with informal justice systems may inadvertently result in the formalization of a two-track system that reinforces unequal access to justice, whereby courts are reserved for the wealthy and the victims of serious crime, while the poor and victims of ‘minor’ injustices are forced to accept ‘secondary’ forms of justice.”

How Donor Approaches to the Informal Justice System are Failing: 

“The main donor approach…has been to target the interface between the formal and informal legal system by fixing the problems in informal justice systems. These efforts aim to align customary rules and procedures with internationally recognized standards of women’s rights – through expanding women’s participation in informal decision making, codifying informal laws to comply with international human rights, outlawing harmful customary practices, ensuring that informal justice systems are accountable to the state system.”

“‘Fix it’ approaches risk being unsuccessful if they fail to consider the underlying reasons for which local norms do not align with international human rights standards. For example, in some settings the practice of making men who commit rape marry their female victims arises from the concern that the victim would otherwise be unable to support herself, due to stigma and discriminatory attitudes towards rape victims…Simply outlawing [these practices] without considering the basic economic, financial and social safeguards for female victims may leave women in an equally vulnerable position…Approaches that concentrate exclusively on bringing informal systems into alignment with international norms might be shortsighted and more problematic for women. In addition, reforms achieved with isolated fix it approaches are unlikely to be sustainable in the long term. They risk being perceived as alien to the community concerned, especially when discriminatory practices are deeply entrenched.”

“Reforms aiming to enhance women’s rights are often perceived by decision makers as ‘Western-imposed’ and not organic. Statutory interventions are unlikely to produce results unless changes are embraced from within the community and reforms are grounded in local practices, history and culture.”

How Practitioners Should Work Within Informal Justice Systems:

“[They should] look for appropriate openings presented within the local justice framework to work collaboratively with community members committed to social change and the redefinition of culture, including women’s groups active at the local level. [This does not]  imply that attempts to bring informal systems into the human rights framework through statutory measures have no place as a strategy to address women’s access to justice. Rather…such reforms are generally more successful when they are complemented by efforts to address asymmetric power structures at the local level.”

To read more, click here.

Common Theme among Country Case Studies:

“Most of them also share a common methodology in designing the intervention, which involves compiling detailed historical and contemporary analysis of the local setting, understanding the core issues for women in that community and identifying the best entry points to address such issues, whether at the formal or informal level.”

Below are a few examples:

Namibia Case Study

Project Summary: The traditional court system exists side-by-side the formal justice system in Namibia, and is specifically provided for by legislation. Since 1993 there has been a push in Namibia to increase women’s participation in traditional courts, for example by appointing women as leaders and as representatives in village court cases.

Lessons Learned:

1) “Important to increase participation of women in leadership roles. Having women in visible leadership positions has a positive impact for improving both women and men’s views on the capabilities of women as community leaders and in improving justice outcomes for women.”

2) “Increasing the presence of women in court proceedings and encouraging them to take an active role, for example as participants as witnesses, leaders, or as representatives can positively affect women’s feelings about the performance of the traditional court system.”

3) “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.”

4) “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.”

To read more, click here.

Credit: blog.voices.com

Credit: blog.voices.com

Bougainville Case Study 

Project Summary: During the civil war from 1989-1998, the formal justice system was largely inoperative and years later, the population continued to rely heavily on customary institutions to maintain peace and security.  The Bougainville Centre for Peace and Reconciliation (PFM) began grassroots training on nonviolent dispute resolution and mediation.  This led to partnerships with local chiefs to conduct trainings to build conflict resolution and mediation skills in local communities, and thus promote intra- and intercommunity social harmony and local ownership over justice processes. 

Lessons Learned: 

1) “Interventions which encourage local discourse on challenging ideas and are structured around locally legitimate change processes can have progressive results.”

2) “Focusing on process rather than substantive [rights] meant the PFM intervention was regarded as locally owned and compatible with customary values. However, it also meant that the intervention had no impact on the gap between men and women’s perceptions of the dispute resolution process.” 

To read more, click here.

Credit: Sheila McKinnon

Credit: Sheila McKinnon

Rwanda Case Study 

Project Summary: In Rwanda, as in other African systems of customary law, women generally claim access to land on the basis of their relationships with men. To remedy this, an Inheritance Law was introduced in 1999 and ended important aspects of customary law, but this has not led to significant changes on the ground. Due to difficulties in resolving women’s interests in land, RCN-Justice et Démocratie (RCN) selected six villages to help resolve cases involving women’s land interest by resolving it at the village level.

 Lessons Learned: 

1) “With appropriate training and advocacy, community-based dispute resolution actors can be encouraged to make greater use of such techniques, which can translate into better outcomes for women. In this way policymakers and development programmers can make positive use of the flexibility in customary systems by stimulating reliance on forms of dispute resolution that place greater weight on the needs and circumstances of more vulnerable disputants.”

2) “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.” 

To read more, click here.

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