In “Navigating Complex Pathways to Justice: Women and Customary and Informal Justice Systems,” the International Development Law Organization (IDLO) presents the results of a global consultation on customary and informal justice (CIJ) systems. By increasing engagement with informal justice systems for dispute resolution purposes, IDLO aims to enhance access to justice for vulnerable and marginalized communities in developing countries, thus furthering realization of the Sustainable Development Goals (SDGs). SDGs 5 and 16 emphasize gender equality; female empowerment; and the promotion of peaceful, just, and inclusive societies. SDG 5 includes a focus on the elimination of harmful practices against women, such as discrimination, violence, sex trafficking, genital mutilation, and forced marriage; while SDG 16 concentrates specifically on access to justice and the promotion of the rule of law both domestically and internationally. Women commonly encounter disputes related to inheritance, divorce, property rights, and violence, and those disputes are often adjudicated through informal systems that discriminate against women and girls.
Despite significant advancements towards gender equality in recent decades, patriarchy remains prevalent in developing countries. Discriminatory practices are experiencing a revitalization in some of these places, as efforts to improve gender equality face ongoing resistance. In 2017, for example, IDLO cites that more than one billion women around the world lacked basic protections from domestic sexual violence. In 2018, only 37 of 161 countries reviewed by IDLO had legislation explicitly promoting equal rights for men and women regarding land ownership and use.
As large numbers of women utilize CIJ mechanisms, recognizing the importance of and engaging with CIJ systems to fight discriminatory practices has become especially crucial. Women turn to CIJ systems for a variety of reasons, including
- Geographic accessibility;
- Financial accessibility;
- Expediency;
- Linguistic accessibility;
- Familiarity;
- Legitimacy; and
- Flexibility.
Despite increasing recognition of CIJ systems’ significance, the report notes three shortcomings of their ability to guarantee women’s rights. First, IDLO notes that CIJ systems are diverse and include a wide range of relatively independent actors, which prevents the formation of an equitable system of justice allocation for all participants. Some systems, for example, intentionally exclude marginalized women, whereas others exclude women from decision making roles, rely on discriminatory social norms in resolving cases, or impose decisions that disregard women’s rights. Second, IDLO argues that refusal to engage with CIJ systems because some violate women’s rights may actually result in substandard justice for these women. For instance, engagement with these justice systems has the capacity to facilitate necessary changes to their policies relating to women, which would be inadvertently overlooked by a failure to engage with these CIJ systems. Third, CIJ systems are frequently presented as traditional and static, but this overlooks their dynamic nature. CIJ mechanisms, like their formal counterparts, continue to evolve and renegotiate their legitimacy in the communities they serve.
A variety of challenges for women exist within CIJ systems, varying depending on such factors as women’s identities, the nature of a particular CIJ system, and the nature of a dispute or grievance. For example, according to the report, “women who have limited financial resources and education, who live in remote locations, or who suffer from HIV/AIDS face distinct challenges.” CIJ mechanisms traditionally operate in public, creating a risk of shame and social stigma for women who seek redress. Women’s access to CIJ mechanisms is often limited by a lack of knowledge of their rights and the law, attributable to lower levels of literacy and formal education amongst women in many developing countries. Even where women do know about their rights and the law, the content of those laws can provide insufficient protections. More specifically, CIJ mechanisms are generally meant to operate in ways that do not contravene formal justice systems. Furthermore, in certain countries, various forms of gender-based violence are still not criminalized, or laws prohibiting them are not enforced. Additionally, women frequently lack basic protections of their land and property rights, which are critical to reducing poverty and achieving gender equality, providing the potential for both livelihood and food security. A characteristic lack of economic opportunities for women in developing countries further limits their abilities to successfully achieve justice.
As IDLO suggests, effective engagement in the CIJ sector requires an inclusive, transparent, and sensitive approach to these issues. To that end, IDLO recommends the following practices:
- Empower women to achieve justice through campaigns that raise awareness or provide training for women and through dialogues between women and CIJ actors.
- Ensure that women’s voices at local, national, regional and international levels are heard and constitute a critical part of reform strategies.
- Promote and foster interactions between CIJ leaders and existing support services to build productive relationships.
- Facilitate safe environments for women to enjoy their rights and pursue justice.
- Strengthen representation and participation of women in CIJ decision making.
- Enhance research on women’s experiences with customary and informal justice systems.
NOTE: This summary is produced by the Rule of Law Collaborative, not by the original author(s).