Traditional Courts Bill sparks controversies in South Africa

The Traditional Courts Bill was first introduced in 2008. Recently it was reintroduced and according to its sponsors the Bill should become effective as of the end of 2012. The Bill repeals the Black Administration Act of 1927 – no doubt, a long overdue task.

In a nutshell, the Bill regulates the institution of a traditional court. The minister responsible for the administration of justice designates a senior traditional leader, king or queen! to preside over the traditional court. Traditional courts will have jurisdiction to hear certain civil matters (exceptions are constitutional matters, divorce, alimony, custody or guardianship of minor children etc.) as well as some criminal offences such as theft, malicious damage to property, damages not exceeding certain limits and assault which did not result into bodily injury.

When deciding upon disagreements traditional courts should apply customary law and customs. Through bringing justice to the communities the Bill aims to:

• Affirm the values of traditional justice which is based on restorative justice and reconciliation. In the language of the Bill, restorative justice and reconciliation are true African justice values;
• Affirm the role of the institution of traditional leadership;
• Enhance the effectiveness, efficiency and integrity of the traditional justice system;
• Enhancement of the quality of life of the traditional communities through mediation;
• Promote access to justice for all persons in South Africa.

As foreseen in the Bill, traditional courts should prevent conflict, maintain harmony and resolve disputes where they have occurred. For instance, the sanctions imposed by the Traditional courts cannot be inhumane, banish one of the parties from the community or be humiliating (corporal punishment is explicitly outlawed).

If the Bill were passed as it is, the Traditional courts will have a colourful array of resolutions from which they can select in order to solve the outstanding disputes. For instance, they can impose fines which might be expressed in money but also in livestock. Traditional courts will also be able to order an unconditional apology or service in the benefit of the community.

The Bill includes certain procedural rights which should ensure the fairness and justness of the trial. The full rights of women are specifically acknowledged. Here, it should be noted that the Bill envisages only procedural rights. Substantive rights are all in the domain of customary law. Ultimately, all resolutions of the Traditional courts can be appealed to the magistrates’ courts.

Supporters of the Traditional Courts Bill emphasise its potential to bring justice closer to the communities. Zolani Mkiva, head of the presidency of the Congress of Traditional Leaders of South Africa alleges that traditional leaders will be unbiased in their role of neutrals solving disputes in Traditional Courts. “With any form of unfairness, people are free to take it to another level”.

Many observers, however, disagree with the intentions and approach of the Bill. Their arguments come from different directions. Some challenge the wisdom of centralization of local powers in the hands of non-elected and unaccountable traditional leaders. Moreover, the structure of the traditional courts centralizes significant powers to a single individual. It is not difficult to see traditional leaders disposing justice despite of conflicts of interests.

Others challenge the patriarchical fundaments of the institute of traditional leadership in South Africa and warn that such institutions can further harm the interests of women and other vulnerable groups such as foreigners who make sizeable proportion of the population of many rural areas. An example of the attitude that some traditional leaders might have towards women is a story from Prudhoe village, where an eight-month pregnant woman tried to claim damages from the man who made her pregnant and then abandoned her. The tribal court decided that she was just speculating with the good name of the man. Also the court said that the man’s father is rich and important and it is not desirable for the community to “pull their family name in the mud”. At the end, instead of being given relief, the pregnant woman was sentenced to corporal punishment.

Third argument against the Traditional Courts Bill as it is now is that it will basically force rural communities into an experiment with Traditional courts. Indeed, there is the appeal path but one immediately might ask how many of the poor, uninformed and disempowerered people will ever think of appealing the resolution of a Traditional Court.

 

 

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Witchcraft Legal Aid in Africa

Interesting recent story in New York Times by Chi Mgbako, clinical associate professor of law and director of the Walter Leitner International Human Rights Clinic at Fordham Law School in New York City. He shares his experience with an NGO run mobile legal clinic in Malawi providing help and advice to people accused of black magic and other forms of witchcraft. Not surprisingly elder women and children are among the most likely to be accused. Together with the irrational element of fear, the author shares that often times the motives are to appropriate the property of the accused. Another interesting point is that along with economic hardship it is also the limited opportunities for political participation and expression contribute to the practice:

“Economically oppressed people who lack political outlets to express their grievances may also turn to leveling accusations of witchcraft. Conflict, internal displacement, the lack of development, and the weight of HIV/AIDS on families have all contributed to the rise of witchcraft accusations in Africa.”

There is a law in Malawi outlawing the practice but as everyone knows a written law itself is doing little good. People are not superstitious because they do not know the law. I think the real value of the legal clinic was to empower the poor defendants through standing behind them. Having law students on their side they are not any more  helpless victims.

Read the whole article here

Access to justice for indigenous women in Latin America

A recent report explores the challenges that indigenous women in Latin America face on their paths to justice. Special emphasis is placed on the impact of legal pluralism on access to justice of indigenous women in the region. The report is based on three premises:

– exercise of legal rights cannot be disconnected from the various contexts that shape the lives of the women from the indigenous groups;

– access to justice is only a facet of the more general debate on the rights of the indigenous people in Latin America;

-institutional innovations are only a small part of the access to justice approaches for women from the indigenous communities.  Inequality, poverty, racism and discrimination are problems which preempt the access to justice discourse.

Some of the major findings of the research:

– Indigenous women in Latin America have to cope with patriarchal orders and gender inequality norms rooted deeply in both formal and informal legal institutions;

– The structural causes for problems with access to justice are violence, marginalization and poverty. Apparently there are not easy and quick fixes to these problems;

– Collective women’s rights and rights of indigenous people in Latin America are not mutually exclusive categories. Both dimensions should be emphasized in order to promote access to justice for indigenous women.

Download the (in Spanish) report from here

14 years old Bangladeshi girl dies after given 100 lashes by a shalish court

Traditional justice can be a potent alternative to formal justice but it is certainly not a perfect option. A resent story published in the Guardian tells about 14 years old Bangladeshi girl Mosammet Hena who died after being beaten with a bamboo stick. The corporal punishment was delivered by a village court (shalish) for alleged adultery.

“What sort of justice is this? My daughter has been beaten to death in the name of justice.” asks the victim’s father.

Last year religious edicts were outlawed in Bangladesh but apparently the tradition holds.

Read the article here

Local chiefs instrumental for justice delivery and access to justice in Sudan

Since colonial times local chiefs have important dispute resolution role in Sudan. In a state in which the government provides little justice people are used to justice delivered by local chiefs.

 

A recent report by the Rift Valley Institute and the United States Institute for Peace studies the interaction between formal and informal justice in Sudan. Main findings of the report:

• At the local level, the boundaries between customary chiefs’ courts and governmentcourts—and between customary and statutory law—are blurred. A legacy of colonial andpostcolonial government policies, the local court system functions as a loosely governedunitary system, which incorporates legal principles and practices from both statutory andcustomary law. It is characterized by hybridity and mutability, by an amalgamation ofprinciples and procedures rather than a clear distinction between separate legal spheres.
• Customary law itself is not simply a set of rules and sanctions, but a contextually definedprocess, involving flexibility, negotiation, and reinterpretation of a dynamic body ofknowledge to reflect what is considered reasonable under the circumstances. Due tohistorical influences, it is often conducted with reference to rules, but the application ofsuch rules is inherently contestable. The court processes in which such contestationoccurs are critical mechanisms to ensure that customary law and outcomes keep pacewith local context and social change.
• People frequently express preference for just such negotiated, flexible settlements thattake into account the particular social contexts of disputes, rather than any rigid applicationof written laws.
• Southern Sudanese tend to assert the absence of any entrenched discrimination in theircourts. But they heavily criticize courts at all levels for the perceived increasing prevalenceof bribery, favoritism, and excessive delays, which significantly disadvantage the poor.Such criticisms are particularly directed at the government courts; the lengthy proceedingsrequired by due process are interpreted as deliberate corruption and blamed forescalating conflict. Additional obstacles to justice include military or government interference,police incompetence and abuse of power, weak enforcement capacity, and aperceived erosion of the power of elders, chiefs, and judges.
• Despite these expressed perceptions, in actual practice litigants make complex pragmaticcalculations to identify a forum most likely to satisfy their aims. Local culture stronglyfavors restorative and consensual dispute resolution, but this may be overridden when thesocial relations between parties encourage an adversarial, retributive approach. Increasedresort to police or government courts is partly a result of urbanization, but may alsoreflect the strong demand for protection, as the courts’ power has eroded and society hasbecome militarized.
• In light of the socially varied aims of justice, the hybridity, flexibility, and room for forumshopping in the local justice system are positive elements that increase opportunities forjustice, accountability, and constructive change. Where government courts impose morerigid statutory penalties, litigants seek alternative forums in which to negotiate positiveoutcomes of compensation and, if appropriate, marriage.
• In a context of recent mass migrations and rapid urbanization, the local justice system hasdeveloped positive mechanisms for handling interethnic cases, demonstrating that customaryjustice is not restricted to discrete ethnic groups.

Read the report here

Religious courts in Indonesia provide access to justice for women

The Australian tells an interesting story of an Indonesian woman called Ibu Suciwati:

“Ibu Suciwati’s parents arranged her marriage when she was 14, two years below the age at which girls can legally marry. This meant her marriage was not registered and her three children did not have birth certificates, as do 60 per cent of Indonesian children under five, according to UNICEF.

After five years of marriage, Ibu Suciwati’s husband left to work on another island and never returned. She later learned he subsequently remarried.

Naturally, she wanted a formal divorce to evidence the fact her household was now among the 14 per cent of Indonesia’s 65 million households headed by a woman. But because she ekes out a tenuous existence, Ibu Suciwati thought she couldn’t afford it.

Then Religious Court staff advised that her case could be heard by a circuit court when judges travelled to a village near hers, thus slashing her travel costs. Better still, the judges would waive court costs because of her poverty.

They first formalised Ibu Suciwati’s earlier non-legal marriage and then issued the divorce certificate she wanted. This has meant her three children all have birth certificates, showing both parents’ names, and have been able to enrol for national school examinations.”

Read more about the unexpected impact of the nnovative circuit courts and fee-waiver programs here