On October 8th and 9th I had the pleasure to attend the Expert Group Meeting on “Women, Legal Pluralism, Customary and Informal Justice Systems” at the International Development Law Organization’s office at The Hague, Netherlands. I was invited to attend by Prof. Hauwa Ibrahim, our Human Rights professor at Global Governance, she was one of the legal experts invited along with other practitioners, researchers, policymakers and representatives from women’s organizations, of different nationalities and regions of the world. This meeting was part of a global series of consultations that IDLO has been gathering, in order to discuss how to engage with customary and informal systems of justice for women and girls, recognizing it is necessary to work with state and non-state systems to strengthen the rule of law, prevent and resolve conflicts.
The objective of the meeting was to identify concrete recommendations on policy and programmatic directions, including practical entry points and modalities of engagement, to enhance justice for women and women’s rights in the context of customary and informal justice systems (CIJs). IDLO has been working extensively in this area, thereby contributing to achieving Goals 5 and 16 of the United Nations 2030 Agenda for Sustainable Development. Aiming to ensure equality of protection and benefit for all, considering that although legal protections and frameworks exist, a substantial percentage of women and marginalized communities are still unable to access it.
In order to understand the discussions, first we need to focus on the meaning of customary and informal justice systems. To do so, we must exercise our ability to step back from our own realities and consider those who live in developing, fragile and post-conflict contexts, as Colombian former liberation group communities, small villages in Kenya or almost unreachable societies in the Solomon Islands, as well as several other contexts where formal justice is a distant reality or simply non-reliable. According to IDLO, over 80% of legal disputes are resolved outside the formal court system, as village courts, councils of elders and religious courts.
Formal justice is the regular legal system part of modern nation-states, where their power and structure derive directly from the state through laws, policies and regulations. Bearing in mind that seeking justice through formal courts tends to be an expensive and lengthy process, in different contexts we will find alternatives which provide the communities a faster, cheaper and (usually) reliable conflict resolution system. Another advantage of CIJ systems is of linguistic nature, as especially in post-colonial countries the formal system tends to operate in the language of the former colonial powers, thus excluding native languages which are usually the most commonly used amongst the communities.
CIJ systems exist closer to the reality of the population, in comparison with formal justice. Their customary norms and rules are actively produced, enforced and recreated through processes of participation and contestation. They can be distinguished by their adaptability and flexibility, hence their codification could either become outdated and/or narrow its ever-changing characteristic. While CIJ systems are often defined as “static” due to the traditional societal norms they reflect and apply, they can simultaneously be considered as dynamic.
The IDLO’s Policy and Issue Brief on Customary and Informal Justice (p. 08) defines informal justice as:
“Defined as unofficial (dissociated from state power), non-coercive (dependent on rhetoric rather than force), non-bureaucratic, decentralized, relatively undifferentiated, and non-professional; its substantive and procedural rules are imprecise, unwritten, democratic, flexible, ad hoc, and particularistic. While no informal institution can be expected to embody all these attributes, each will exhibit some. Informal justice should not be conflated with systems that are simplistic or lacking in authority. For instance, the Pashtunwali system in parts of Afghanistan is comprised of complex and developed rules and its decisions often carry greater weight than those of formal courts, particularly in rural areas”.
Customary and informal justice systems are a product of the environment where they operate, thus they are built upon public legitimacy and acceptance. However, due to the same reason of their origin, these systems reflect the customs and norms of the communities they belong. Therefore, often they act unfavorably to vulnerable populations, especially women and children, as a result of patriarchal structures, leading to inequality and discrimination.
Below some examples that were shared during the meeting will illustrate the several nuances of the reasons why women across the world face difficulties, while trying to access justice systems, and how intrinsically the structural problems are connected:
Indigenous Peruvian communities
Even before colonial times, the access and control of land in indigenous tribes was unequal among men and women. Men usually would receive a larger proportion of land and women a smaller, due to the belief that men were stronger, while women should take care of family matters. Although, the land was regarded as collective property, not individual, so all that was produced was supposed to be shared among the tribe. After the Spanish colonization, the population started to receive sums of the land for individual use. Therefore, even though the pre-colonial system was patriarchal, with colonialism and the spread of Catholicism, this system was reinforced. Before 1993, 49,7% of land belonged to collective property and native communities, and it was inalienable. After 1993, the land became capable of being sold; this decision was taken solely by men.
These communities only started to change once the women organized themselves to fight for their rights and change the laws. Although some women believe the traditions are correct, which leads to confrontation amongst them. As posed by the Peruvian representative at IDLO: “It is not enough to be a woman if they think like men, it’s necessary to understand what and why you’re fighting for”. According to the Peruvian Constitution, article 149 states that there should be coordination among formal and informal justice. However, in either judicial systems women’s rights are still not respected.
Countries with Muslim backgrounds and influences
Some of the participants belonged to countries with a substantial Muslim population, in spite of their locations, either in Nigeria, Somalia or Afghanistan, they shared similar backgrounds based on the principles of the Kuran and their experiences frequently comprised the same structural issues that prevent the access of women to justice. The participants mentioned several examples of how patriarchal and gender stereotypes are reinforced and often used as excuses to hinder women from achieving financial independence and benefit from basic rights such as marrying by choice and being able to file for divorce.
Controversial practices such as female genital mutilation, regarded by industrialized countries as gender-based violence could be reframed by another perspective from within the societies in which it takes place as an essential characteristic for women to belong into those communities, as without it, they could be ostracized and thus lose their rights. Although, as mentioned by one of the legal practitioners, this practice is considered anti-Islam. Leading to a dichotomy among custom and culture. Thus, some customary justice systems tolerate these practices and impose discriminatory sanctions. Forced marriage after being raped also constitutes one of the controversial aspects of some systems, as in some regions of Kenya, where the abuser and the victim are obliged to marry as a penalty. Once the woman would not be fit to marry someone else after losing her virginity.
Another practice mentioned in Islamic cultures was how women do not receive the proposed “mahr” (a payment in form of possessions or money, supposedly made by the groom to the bride). According to Sharia Law, the groom should grant the bride this payment under the marriage contract. However, rarely this procedure is concluded. Therefore, the wives are prevented, once again, from achieving a potential financial independence, as this payment could be used to open a business or invest in their education. Thus, characterizing another nuance of the effects of patriarchy, under the notion that women should stay at home or be less educated than men, as they are the ones who should provide to the family.
Until 1994 women were not allowed to own lands in Indonesia, and, as there are several regional languages in the country, women felt a language barrier when marrying someone from another region, as their customary system would differ. After a two years research it was discovered that 66% of the cases were solved by customary law, so the government asked the communities from different regions to meet and their laws were synchronized, they were written in Indonesian to tackle the language barriers.
A case in the Solomon Islands was also mentioned where a whole forest which before belonged to the community was sold and one of the women from the community stated that she received only 100 dollars, while the others did not even know it had been sold and did not receive a penny.
After the experts shared their experiences from different contexts, it became evident how structural issues such as patriarchy are inherently linked to the difficulty women face in different aspects of their daily lives: from access to jobs, leading double-shifts by doing housework, to sometimes being unable to apply for loans without the permission of a man, or being deprived from their rights of inheritance, of child-support and of land ownership. Despite the several prejudices they face if do not follow the roles imposed to them by the society in general, be it western, oriental, indigenous, Muslim or Christian.
In conclusion, the meeting provided the following recommendations: in order to ensure that plural legal systems provide a space where women’s issues are respected and resolved, women’s rights must be at the core of efforts to engage with customary and informal systems. As well as women must be empowered to understand the pros and cons of each justice system and how they could help their cases.
A structural change is necessary in order to allow women the chances of achieving their personal goals, it must come from within the communities through education and teaching children that all humans deserve the same treatment and respect. Empowering women means empowering communities. Means a brighter future for those who have been denied their freedom for years and still suffer the consequences of behaviors that do not fit our current reality.
ENGAGING WITH INFORMAL SYSTEMS TO ENHANCE JUSTICE FOR WOMEN. IDLO.
PRACTITIONER BRIEF: ENGAGEMENT WITH CUSTOMARY AND INFORMAL JUSTICE SYSTEMS
POLICY AND ISSUE BRIEF: ENGAGEMENT WITH CUSTOMARY AND INFORMAL JUSTICE SYSTEMS