As countries seek to make progress towards achieving Sustainable Development Goal 16, there is growing recognition that it is essential to work with both state and non-state justice systems to strengthen the rule of law and effectively prevent and resolve conflicts.
As part of a global series of consultations, in October 2019 IDLO convened the first meeting of experts from around the world to discuss how to engage with customary and informal systems to enhance justice for women and girls.
Over the course of the two-day workshop, practitioners, policymakers and representatives of women’s groups considered obstacles and pathways to ensure justice for women in plural legal systems.
Representing a range of sectors and geographic regions, the group of experts agreed that engagement with customary and informal systems is necessary to secure justice for women. Only through deeper collaboration will it be possible to meet the objectives of the 2030 Agenda and enhance access to justice for all – including for women and girls.
Customary and informal justice systems
In many parts of the world, people turn to customary and informal systems to address their grievances and obtain justice. Village courts, councils of elders and religious leaders can provide an easily accessible and affordable path to resolving disputes and criminal matters, and one that is often considered more familiar and flexible than the formal court system. According to some estimates, over 80 per cent of legal disputes are resolved outside of the formal court system.
Speaking during a HagueTalks interactive dialogue with the public on the sidelines of the expert group meeting, Jemimah Aluda, a lawyer and women’s rights activist from Kenya, gave an example of a homicide case in which retributive justice would negatively impact the families of both the victim and the accused.
“If you were to go to a criminal court, the accused would be sent to jail, and both families would suffer,” she explained. “In the north of Kenya, such matters tend not to be taken to court. Under the customary system, the clan will take charge. The accused will be made to look after the victim’s family, pay compensation and ensure the children go to school. In the meantime, he will continue to take care of his own family.”
Challenges for women and opportunities for engagement
Women face unique challenges compared to men when seeking justice through the state system. Similarly, they often find justice elusive and their rights undermined by customary systems.
For example, in many cases, disputes are resolved by men, and women can only represent themselves through male relatives. Patriarchal norms and customs in some societies can result in customary justice systems not considering severe forms of violence against women as serious offences. Some customary justice systems tolerate discriminatory practices such as female genital mutilation and denial of widow inheritance, and impose discriminatory sanctions such as forced marriage.
Ms. Aluda acknowledges these challenges. In some parts of Kenya, she says, customary systems can force a young girl who has been defiled to marry her abuser, as she is considered unfit for marriage to another person once she has lost her virginity. Laisa Masuhud Alamia, a human rights lawyer from the Philippines, has similar stories to tell: “Examples like these are still happening because they are justified by custom, religion, tradition.”
We realized that customary and informal justice systems are still alive and thriving.
Therefore, sensitizing customary and informal justice actors about women’s human rights is paramount. “We realized that customary and informal justice systems are still alive and thriving. So we needed to document the good practices and also look at the negative cultural and social norms and see how we then sensitize the leaders and the community around positive change,” said Rita Aciro, Executive Director of the Uganda Women’s Network.
Furthermore, women have proven to be innovative in exploring avenues to justice in such systems that would remain inaccessible via the formal court system.
For example, in the Swat Valley – a district of Pakistan where under the Taliban rule, women were forbidden to leave the home without a male relative and continue to experience high levels of gender-based violence – people turn to traditional community assemblies known as ‘jirgas’ to resolve their disputes. Tired of women’s rights regularly being discriminated against by male-only jirgas, a group of 25 local women formed its own jirga in 2013. The all-female forum has heard thousands of cases related to women’s issues and uses its collective strength as well as the support of its senior female members to back women’s cases in formal courts.
Entry points and recommendations
To ensure plural legal systems provide a forum where women’s issues can be heard and resolved, the participants of the expert group urged that women’s rights must be placed at the heart of endeavors to engage with customary and informal systems. They also noted that women should be empowered to make informed decisions, including by understanding the advantages and shortfalls of different justice actors.
I think we can strengthen indigenous systems by empowering women to take decisions.
The President of the Peruvian Organization of Andean and Amazonian Indigenous Women, Melania Canales Poma, said: “I think we can strengthen indigenous systems by empowering women to take decisions and providing guidance to communities on how to address matters of rights violations for women justice seekers.”
The experts also recommended further enhancing the constructive collaboration between the international women’s rights movement and women’s groups, as well as further research to better understand concrete ways of engaging with customary and informal systems on women’s rights issues.
The entry points and recommendations on ways to advance women’s rights and achieve fair justice outcomes for women identified by the expert group will feed into IDLO’s global analysis and inform policy dialogue on issues related to customary and informal justice.