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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.

 

cid:D95A9FD84218410F9CF685C80BD8681E@D15860BF233240A

 

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.