List of Tables
Chapter 11: Conclusions, Policy Implications and Recommendations
2.10.2 Community engagement and language usage towards legal empowerment
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to disputants choosing among multiple forums in the context of legal pluralism. However, forum officials sought to attract plaintiffs for political reasons, some of which were related to the nature of the dispute.
Returning to the issue of gender, Chopra and Isser (2012:353) point out that forum shopping in a plural justice system may “present an opportunity to contest prevailing social norms and to promote women’s rights”. This is especially true of the traditional justice system that is fluid and depends “on the definition and interpretation of norms by community members and can readily adjust to social change”. The existence of alternative fora for dispute resolution creates multiple legal orders, which according to Chopra and Isser (2012:353), offer women “an opportunity to select the institution that is more likely to facilitate access to justice”. To these authors legal pluralism allows the various justice systems to contest each other and can make women and activist groups “more active in shaping and defining legal norms and processes in order to advance access to justice for women”.
Simojoki (2011:47) points out that in a pluralistic context, “access to justice might best be seen as creating a more even playing field where all users have viable and realistic pathways to suitable outcomes. Viewed in this way, a holistic approach to enhancing access to justice that targets all stakeholder groups and components of the justice system is most likely to yield results”.
The discussion now turns to community engagement as well as use of language as components of legal empowerment.
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Harper, et al (2011:174) argue that “customary justice actors are generally appointed within communities on the basis of status or lineage. Customary justice systems can support and reinforce power imbalances”.
However, empowerment cannot be transplanted or imported. Instead, it is likely to be effective when it grows from community engagement that identifies needs and initiatives”. Harper et al (2011:174) further argue that the monitoring of customary proceedings by local community members that seek to promote
“women’s, children’s and indigenous people’s rights, such as paralegals can challenge unfavourable power dynamics and help prevent the abuse of power”. Likewise, by monitoring customary proceedings, paralegals may help confirm that one’s rights are upheld.
Johnstone’s (2011:27) research revealed that “despite the challenges faced by rural people in accessing justice through the traditional justice system”, they prefer traditional courts and other justice forums over formal courts. The women that participated in the study said that the potential threat of lack of empowerment did not mean they would reject the traditional justice system and its processes. Bond (2010:427) concurs and points out that “women value their cultural identity even as they work to eliminate discrimination within that identity”.
Bond (2010:428) states that by “viewing African women almost exclusively as victims of their culture, the rights groups have historically undervalued the potential for African women to reformulate cultural policies within their communities”. Bond (2010:428) submits that the “Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the African Charter on Human and Peoples’ Rights (African Charter) are dismissive of culture and gender equality, respectively. The African Charter on the Rights of Women in Africa (the Protocol) attempts to remedy the shortcomings of the CEDAW and the African Charter”. Bond (2010:428) argues that “the Protocol provides for important procedural rights to ensure that women have a voice in the on-going examination and reformulation of cultural practice and traditional law”. According to Bond (2010:441), the CEDAW does not reflect the multidimensional and intersectional role of African women as both members of their cultural communities and advocates for gender equality within these communities. Simojoki (2011:47) concurs and states “there is something that is very captivating and promising about interventions that evolve from the grassroots”.
As to language, Dexter and Ntahombaye (2005: 12) argue that in pre-colonial times, traditional processes involved advice given “through patient and careful use of the language. After listening to the parties, those presiding would repeat the facts, showing that they were listening to each other and inspiring the parties to also listen to each other and have an open mind. Common-sense terms were used to characterise the case and explain their reasoning to the members of the public who attended”. Likewise, Wojkowska and Cunningham
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(2010:97) contend that language is very important in traditional justice deliberations. The fact that presiding officers speak the local language makes the traditional justice system more accessible and acceptable to the people it serves. The “emphasis on voice and expressing one’s own story in one’s own words can enhance empowerment, as the parties to the dispute feel confident and capable”.
Harper, et al (2011:172) argue that “participatory, deliberative methodologies, where the problem is often regarded as shared by the entire community, represent a double-edged sword. On the one hand, they allow each party to present their story in the language and style with which they are most comfortable, followed by discussion until consensus is reached. On the other hand, such processes raise questions of inclusiveness and can reflect community biases, particularly where certain groups dominate the deliberations”. For example,
“when men speak on behalf of their spouses and female relatives, the deliberations may perpetuate communal prejudices. Furthermore, an opportunity to express one’s voice is by no means a guarantee of equality and empowerment, particularly as certain voices may be more powerful than others” (Harper, et al, 2011:172) .
Chopra and Isser (2012:355) explain that “creating alternative sources of power such as community-based paralegals will advance dialogue between affected women and community justice providers”. Trained CBPs present legal information in an understandable way. Chopra and Isser (2012:356) describe CBPs as ‘insider’
agents that are legitimate contesters because they are from the same community as the women they serve.
They are “familiar with the socio-cultural and political contests in a specific community, and can therefore challenge systems in the right spot. Legal and justice institutions that have been shaped from the inside also allow outcomes that maintain women’s rights to their culture, and their right to change it”.
Literature shows that the question of whether either integration of multiple justice systems or parallel justice systems is suited “for access to justice and legal empowerment remains unclear. However, the availability of multiple legal forums helps women to make informed choices rather than being forced to take a particular legal approach”. The literature notes that access to justice for women will not be promoted by advancing a particular justice system; rather, according to Chopra and Isser (2012:358), it requires an “understanding and engagement with the process of contestation and social change through which power relations and rights are mediated”. This study helps test the theoretical concepts of forum shopping and legal empowerment by exploring the role of CBPs in community restorative justice.
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2.11 Interactive Nexus between Access to Justice and Plural Legal Systems
Although it is unclear as whether an integrated legal system would improve access to justice in rural areas, it seems that access to justice is interactive with each of the three justice systems here discussed. Scholars differ on how such interaction between access to justice and various justice systems should exist. Garwe (2007:33) advocates for the inclusion of all stakeholders in promoting access to justice and fighting crime, including ordinary people, NGOs, traditional authorities, and other justice “agencies set up by the government in the criminal justice system. The author notes that crime affects us all and should therefore never be left solely to the police, the courts and prison authorities”. Garwe reiterates that, “a well functioning criminal justice system is all-inclusive, and each actor involved in criminal justice plays an important role”.
Chopra and Isser (2012:354) argue that a formal law framework facilitates access to justice through a set of mechanisms that assist in addressing gender equality and discrimination and contest problematic practices.
On the one hand, the formal justice legal framework can hold government accountable to meet its international law and human rights obligations. On the other hand, it offers community members tools “to contest norms and practices that are not compliant with human rights or gender equity, such as through advocacy and strategic litigation. A human rights-based legal framework can also influence justice processes at local level. While they do not necessarily impact behaviour or lead to increased adherence to the law, formal judgements can be a powerful tool for women’s rights advocates to increase awareness of women’s rights”. The fact that formal law exists and the threat to use it brings about change in some people. As to the traditional justice system, Johnstone contends that processes must be locally driven and the fluidity of customary systems makes them capable of change as warranted (Johnstone, 2011:19). From the perspective of informal justice systems, Chopra and Isser (2012:354) see CBPs as a promising model for “injecting women’s rights at the community level, where they are not just acting as agents that take cases to the formal courts”. Chopra and Isser (2012:354) caution that “while there is plenty of evidence that CBPs have helped women to navigate systems, there is still a lack of empirical evidence on their impact on local power structures”. The findings from this study may help fill that empirical vacuum through, for example, data on interaction between CBPs and the traditional justice system.
2.12 Chapter Summary
This chapter examined access to justice in a variety of ways. A definition of access to justice was adopted that revolves around knowledge and exercise of rights, awareness of such knowledge and ways of exercising rights by service providers, effective and easily accessible infrastructure to access justice, and rendering quality services. Barriers to access to justice were discussed, especially those that affect women as this study
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focuses on rural women’s access to justice. Plural legal systems were delineated including the formal, traditional, and informal justice systems. In terms of the formal justice system, South Africa’s DVA which is the rule of law orthodoxy relevant to this study was examined. This Act is further discussed in relation to community restorative justice and CBPs in subsequent chapters. Turning to the traditional justice system, its historical evolution, and structure and functioning as well as its procedures, processes and jurisdiction were described and the strengths and weaknesses of traditional courts’ procedures, processes and jurisdiction were discussed. African living law was mentioned but not fully discussed as it is beyond the scope of this study.
The informal justice system was identified as the justice system that forms the basis of CBP practice through the use of community restorative justice; however, CBPs generally straddle plural legal systems. The informal justice system is further discussed in Chapter 3 in relation to community restorative justice and in Chapter 4 in relation to CBPs. This chapter concluded with a discussion of the interactive nexus between access to justice on the one hand and distinct, co-existing justice systems on the other. The following chapter reviews the literature on community restorative justice.
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Chapter 3: Community Restorative Justice: An Informal Justice System
3.1 Introduction
There is increasing academic debate on the use of restorative justice in domestic violence cases. A critical issue is whether restorative justice as an alternative to criminal justice is effective or even appropriate for such cases. This chapter discusses this issue as well as the definitions, theories and concepts relating to restorative justice. It highlights the debates in the literature on the use of community restorative justice (CRJ) in cases of domestic violence, use of the traditional justice system in cases of domestic violence as well as arguments for the simultaneous use of plural justice systems for such cases. There is considerable debate on whether domestic violence is a private or public matter as well as whether the traditional justice system is a private or public forum. While the debates and issues raised here remain largely unsettled and are the subject of continued empirical inquiry, this chapter provides a foundation to understand CRJ, with special reference to cases of domestic violence. A conceptual framework for exploring the problems and benefits associated with CRJ is presented being for the chapter concludes with a brief discussion of what appears to be an interactive nexus between access to justice, plural justice systems and domestic violence.
3.2 Community Restorative Justice, General context
Community restorative justice is a community-based restorative justice initiative that seeks access to justice using an informal (non-state) justice system, and is responsive to people’s immediate need for justice (Stapleton, 2007:4). It has developed through practice; CRJ procedures and processes “are tied to traditions and values passed down from generation to generation”. Indigenous communities have been practicing restorative justice at community level for many centuries. Before discussing the manner in which restorative justice can be characterised as CRJ it is important to examine the definitions and theories related to restorative justice.