Perspectives #03/2013: Women, Custom and Access to Justice

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Custom and tradition are at the core of common understanding and the dispensation of justice in great parts of African societies. The right to customary practices is enshrined in a number of constitutions in sub-Saharan Africa. As a matter of fact, traditional court systems remain an important, if not crucial, vehicle for dispute resolution in most African settings where the state law and legal practice institutions are socially, economically and geographically inaccessible for the great majority of citizens, and women in particular. Efforts to ensure access to justice and to protect and defend human rights must acknowledge, reconcile and integrate a country’s statutory and customary justice systems, as well as international human rights standards. This is a complex undertaking especially considering the divergent tenets of the different legal systems.

Custom, the foundation for customary law, regulates communal and social relations and resolves disputes on the basis of recognized practices. It is assigned members of these communities themselves who are mandated to uphold, interpret and implement the custom. Statute, which determines the statutory law, centres on individual entitlements and is enacted by the legislative arm of government in order to regulate relations among citizens, and between citizens and the state.

A major difference is that customs are often unwritten, flexible, and vary according to geographical location. Unlike statutory law, which is written and often appears rigid, customary law derives from oral tradition and is hence difficult to trace. There is no uniform application of customary law, as it is determined by specific cultural practices. It therefore represents a dynamic form of law, dependent on the values and practices of a given community at a particular time.

African legislatures constantly contend with the difficulties of reconciling these two systems of law. In most cases, rather than being integrated, they co-exist side by side, thereby challenging both the constitutionally enshrined equality of citizens and the impartial administration of and access to justice and legal protection.

A particular challenge emerges when the work of interpreting and implementing customary law is limited to men, and where practices are strongly influenced by patriarchal norms. But not only are women often prevented from actively participating in codifying culture, their unequal position in society is also reflected in statutory law systems. Primary concerns in this context relate to the promotion of gender justice and women’s rights within the parameters of the law as well as questions linked to women’s fair and equal access to justice.

Largely based on presentations made during a symposium on “The application of customary law in the South African legal setting, traditional courts and other models: A women’s rights perspective”, co-hosted by the Women’s Legal Centre, the Heinrich Böll Foundation and the South African law firm Bowman Gilfillan, held in Cape Town on 22 August 2013, this issue of Perspectives provides insight into some of the following country-specific challenges and controversies with regards to women’s access to justice in selected sub-Saharan African states.

How does customary law, and the way in which the national legislative process is used, entrench gender inequalities, affecting gendered power relations in South Africa? How do the courts determine the content of living customary law in this country?
What choices are afforded to women trying to find their way through the myriad and complex systems of justice in Zimbabwe?
Is the statutory law capable of delivering equity and justice? Can the traditional justice systems and customary laws be creatively employed to ensure access to justice for women in Kenya?
To what extent has the constitutional promise of equality before the law yielded a change in the daily life of the Swazi woman?
What are the challenges to developing customary law in line with statutory law with the aim of affording improved access to rights and equality for women in Nigeria?

While legal entitlements to equality and justice for women have been achieved over the years, a persistent gender-bias in both the formal and informal administration of justice prevents those hard-won successes from becoming a reality for the majority of African women. Incontestably, moreover, for the attainment of gender justice, legal provisions are not enough. The principles of women’s emancipation and equality have to become entrenched values in social relations. This aspiration will hardly materialise through national legislation and universal human rights instruments alone.