WUNRN
PLURAL
LEGAL SYSTEMS – WOMEN’S CHALLENGES, RIGHTS, JUSTICE
Does this woman living along a mountain cave complex on the outskirts of Bamian, Afghanistan, know she has CIVIL LAW RIGHTS in her country?? She is a member of the Hazara, one of the largest ethnic groups in Afghanistan.
Photo-Moises Saman for New York Times
THE DUE DILIGENCE PRINCIPLE & THE ROLE OF THE STATE: DISCRIMINATION AGAINST WOMEN IN FAMILY & CULTURAL LIFE
http://duediligenceproject.org/Home_files/DDP%20UNWG%20Submission%20Final%20300115.pdf
“States
must also address shortcomings in the formal system to make it accessible
so
that women may opt to use the formal system and are supported when they attempt
to access
the formal system.”
PLURAL
LEGAL SYSTEMS
States
with multiple sources of law or diverse sociocultural demographics must ensure
that
customary
or religious legal systems are interpreted (or reinterpreted) to meet
contemporary and
changing
dynamics, values and challenges. States should circumscribe the applicability
of such
laws
if they breach women’s human rights.
States must ensure that customary or religious legal systems
are harmonized with human rights
principles and all codified civil/criminal law equally apply
to plural and customary/religious
legal systems whether officially sanctioned or otherwise so
long as they are practiced.
For
example
in Bostwana, the Southern Africa Litigation Centre (SALC) successfully ran a
High
Court
challenge of a customary rule providing for male inheritance of the family home
on the
grounds
that it infringed the right to equality under the Botswana Constitution thereby
providing
precedent
for application in respect of other customary legal systems.
The
State also should actively engage religious and customary leaders to bring
their practices in
conformity
with international human rights law. Customary laws must be subject to
constitutional
equality guarantees. For example, the 2010 Constitution of Kenya similarly
declares
that customary laws inconsistent with its equality provisions are void. Kenya
also has
had
success working with the elders in remote Kenyan communities, to resolve
disputes
involving
widows, orphans and the families over their right to inherit property using a
human
rights
framework.
Reconciliation processes may not in themselves be necessarily
problematic if steps are take to
guarantee
that the power imbalance is checked, the victim/survivor has an equal say and
the
outcome
is in the interest of and to provide reparation to the woman and not the
community or
village.
Violence against women and other serious crimes against women are however not
suitable
for reconciliation.
This
is important as women do resort to these informal system, either because they
are more
accessible
or due to family and societal pressures and expectations or cultural identity.
Consequently,
States must also address shortcomings in the formal system to make it
accessible
so that women may opt to use the formal system and are
supported when they attempt to access
the formal system. The
informal justice mechanisms should not however be used in addressing
issues
pertaining to sexual violence and domestic violence.