WUNRN
Canadian Council of Muslim Women – CCMW
PLURAL LEGAL SYSTEMS – WOMEN’S
CHALLENGES, RIGHTS, JUSTICE
May 29, 2015 by CCMW & filed under Around
the World.
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.
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 HighCourt challenge of a customary rule
providing for male inheritance of the family home on thegrounds 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.