List of Tables
Chapter 11: Conclusions, Policy Implications and Recommendations
2.3.2 Gender-based barriers to access to justice
This study focuses on rural women’s access to justice when they are victims of domestic violence; it is therefore important to briefly discuss the barriers faced by women in accessing justice. Generally women face discrimination on the basis of their “gender, ethnicity, and class, which hinder their access to justice”
(Robb-Jackson, 2012: 11). Robb-Jackson (2012: 11) submits that, it is “these gender specific barriers that contribute to the continued violence and violations committed against women. Furthermore, women’s fear of reprisal or social ostracism, lack of economic independence, and limited participation in judicial systems and decision-making forums are some of the barriers that limit their access to justice”.
Based upon case study research of CBPs in Sierra Leone, Robb-Jackson (2012:17) notes that legal pluralism is “particularly challenging for women, and this structure can entail multiple strands of law, based on customs and identity, and a plethora of non-state justice systems that operate outside the purview of the state system”. South Africa also has plural legal systems which must be taken into account to facilitate access to justice and legal empowerment.
Robb-Jackson (2012:17) identified four barriers to accessing justice. The first is the cost of legal services, fines and transportation, while the second is structural barriers in the form of a shortage of trained justice personnel. This also relates to court procedures, lengthy prosecution times, and continual adjournments, and poor witness protection mechanisms, “which hinder people from providing statements or testifying”. The customary legal system also has its limitations; the “primary barrier is that the laws are often not written or codified, which makes the system subject to potential biases and discrimination”. The third barrier is the lack of legal representation and legal awareness; citizens appear in court with no legal representation and “there is limited legal rights education, especially in rural areas. Women are not fully aware of their rights under both domestic law and international law”. Finally, gender-based discrimination; “is characterized by a patriarchal society, where institutionalized gender inequalities are exacerbated by discriminatory customs, particularly
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in regards to property rights, marriage, and sexual offences impede access to justice. In addition social, cultural, economic, and legal inequalities have entrenched women’s dependence on men” Robb-Jackson (2012:17). Therefore social norms could be a barrier to female’s access to justice.
Taken as whole, Robb-Jackson’s (2012:18) view is that shame and stigma are barriers that push women towards “reconciliation and mediation, as opposed to judicial legal processes”. Furthermore, Robb- Jackson’s (2012:18) study revealed that women’s “relatives often interfere in the justice process and push for out-of-court settlement, which further compromises women’s ability to seek justice. The potential for retaliatory violence and post-traumatic stress also impede access to justice for women who suffer threats, harassment, and physical violence. These gender-based barriers are particularly problematic, as women’s reluctance to pursue justice, combined with a lack of economic independence perpetuates a cycle of violence and a culture of impunity for violence against women” (Robb-Jackson, 2012:18).
Van De Meene and Van Rooij (2008:10-11) identify further, gender-specific barriers to justice institutions and to individuals who seek justice either through the formal or informal justice system. Those related to justice institutions are legislation that could be anti-poor and gender-biased, norms expressed in alien, foreign or formalistic language; and lack of enforcement of judgements and decisions. Those related to the individual are negative perceptions of legal institutions and litigation and the social stigma incurred from turning to the law to seek justice. Wojkowska (2006:13) found that formal justice systems could be culturally uncomfortable for rural women and that “going through the formal justice system may lead to more problems for women”.
2.4 Access to Justice on the African Continent
Many African countries exhibit legal pluralism. Access to justice in Africa includes access to traditional justice systems as well as formal and informal systems (Stapleton, 2007:4). Wojkowska (2006:9) describes the formal justice system as one that involves civil and criminal justice driven by the rule of law. It is a state- based, statutory system that includes “institutions and procedures such as the police, prosecution, lawyers, courts and custodial measures”. The formal justice system is also called rule of law orthodoxy (Golub, 2003:5). Stapleton (2007:4) explains that the formal justice systems described by Wojkowska (2006:9) were inherited from Africa’s colonial past. East and Central African countries inherited English common law and southern African countries such as Zambia and South Africa inherited Roman Dutch law or the codified civil law of westernised nations. According to Van Rooij (2012:293), poor people are believed to distrust formal justice institutions and the law; this often coincides with the perception that achieving justice through this
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legal system is difficult or impossible. Stapleton (2007:4) argues that the “lawyer-driven litigation model is simply not a viable option to provide assistance” to impoverished and historically marginalised individuals and communities, either due to the cost or the non-availability of services. Wojkowska (2006:16) observes that, despite formal legal institutions’ efforts to assist the poor accompanied by massive funding, the poor still have difficulty accessing this system, because it is remote, slow, and is still costly, biased, and unreliable. This suggests that indigenous populations in rural communities may avoid Eurocentric justice systems. Kahn-Fogel (2012: 776) notes that “the formal justice system cannot meet all the legal needs of rural people; similarly, informal and traditional justice systems cannot perform the kind of sophisticated work or analysis many clients require from a lawyer, especially in criminal cases”.
Turning to the viability of the formal justice system, Van Ness (2008:102) argues that “it plays an important role in societies” and that it contributes to access to justice and offers a “more efficient process by having professional police, public prosecutors, and a government prison system; at its best, the formal justice system aspires to overall fairness working towards consistency of punishment for similar crimes”. The strength of the formal justice system is its recognition of the need for safeguards to protect those accused of crime (Zehr, 2002:21). Garwe (2007:35) suggests that “in order for the formal justice system to function effectively and to address its limitations, it must be inclusive and involve other actors such as ordinary people, non-governmental organisations (NGOs), and traditional authorities”.
However, the Lilongwe Declaration on Accessing Legal Aid in the Criminal Justice System in Africa (2007:43) declares that the formal justice system should support “traditional and community-based alternatives to formal criminal processes, because the latter reduce reliance on the police to enforce the law and on incarceration as a means of resolving conflict based on alleged criminal activity and enable disputes to be resolved without acrimony, thereby restoring social cohesion”. Nonetheless, on the one hand, Tamanaha (2011:8) cautions that informal and traditional systems cannot act as substitutes for the formal justice system, as they do not address or enforce state legal norms, and their coercive power is limited. On the other hand, rule of law orthodoxy is designed to inculcate statutory norms, and wield broad and deep power.
Unlike rule of law orthodoxy, traditional justice systems vary widely across local communities in a single nation. According to Stapleton (2007:4), African traditional justice systems are mostly unwritten and are linked to traditional customs and “values passed down from generation to generation as the (customary) law regulating life in traditional communities”. Ndima (2003:334) goes a step further to distinguish customary
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law from ‘African living law’. Customary law and African living law existed in pre-colonial times although customary law and traditional leaders are said to have been co-opted by colonial and apartheid administrations, with ‘official’ customary law taken out of its socio-cultural context and traditional leadership shaped to the benefit of colonial and apartheid regimes (Ndima, 2003:334). Without distinguishing African living law from customary law, Nyamu-Musembi (2003:12) concurs with Stapleton that customary laws are largely unwritten, and that customary legal systems vary across African local communities. Nyamu-Musembi (2003:12) refers to the traditional justice system as a community-based justice system (CBJS). Such systems involve a response to “tangible needs that are interwoven with people’s livelihood and therefore are grounded and of immediate relevance. They have more room than the rule of law systems to be innovative because while CBJSs draw from community norms (tradition), they can adapt to community needs in response to which they were formed”.
Makec (2007:134) is of the view that adaptation (flexibility) and simplicity are the most remarkable features of the traditional justice system. Ubink and Van Rooij (2010:7) concur that flexibility and negotiability facilitate access to justice for members of historically marginalised communities. They refer to such a system as living customary law that governs daily life in a local community and is inherently dynamic. However, unlike Ndima (2003:334) Ubink and Van Rooij do not distinguish between ‘official’ customary law subject to European influence and African living law experienced prior to, during and post colonialism. At any rate, traditional justice systems have their own shortcomings. Stapleton (2007:4) cautions that traditional justice systems are not a panacea, and that “one should be cautious of romanticizing the picture and harking back to some pre-colonial golden age as has been attempted in some countries, and that they are susceptible to a tendency to maintain a status quo particularly where women and younger persons are concerned”. Makec further (2007:133) observes that while the application of “customary law as a justice system parallel to the statutory rule of law is not a new phenomenon in many African states, in some countries it has been treated with contempt as an inferior or subordinate justice system, which serves the needs of backward communities”.
The informal justice system is the cornerstone for “accessing justice for the majority of the population in many countries, and recourse to the formal system is only contemplated, if at all, as a last resort”.
Wojkowska (2006:8) found that the “majority of disputes are resolved at local level; any strategy to extend access to justice needs to take greater account of informal justice systems and actors”. A review of the literature reveals that scholars differ on what constitutes an informal justice system and that the context in which such systems are used also differs. Wojkowska (2006:9) argues that some people do not distinguish
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between informal and traditional justice systems. In much the same vein, Ntlama and Ndima (2009:12) point out that the informal justice system could be described as traditional, indigenous, customary, restorative or popular justice. Stapleton (2007:4) describes the informal justice system as a non-state system that promotes
“access to justice for the poor and rural and disadvantaged people”. Skelton and Sekhonyane (2011:586) describe informal justice systems or non-state justice systems as those that do not rely on or are not linked to the formal justice system.
Wojkowska (2006:9) contends that, the reason for the lack of a uniform description of informal justice systems is that in many countries customary law is recognised and “regulated by the state either by law, regulation or by jurisprudence, and is therefore semi-formal”. Phoya (2007:32) regards customary law that is recognised and regulated and formally applied at village or community level as state law, which is the case in Malawi. The recognition of customary law as state law therefore collapses the distinction between the two systems. Weilenman (2007:88) observes that the systems are distinct even “though legal pluralism is a common feature within the structures of official state law. As such, questions of informality are often merely questions of perspective”. Weilenman adds that oral traditions do not always imply informality and that for those living in rural areas it is the informal law that may have the “smell of formality”. Weilenman (2007:89) concludes that “instead of advancing one set of laws over another”, all justice systems should be recognised for the unique role they play in different communities.
Informal justice systems are not without problems. Kane, Oloka-Onyango and Tejan-Cole (2005:11) point out that the danger of both informal justice systems and traditional justice systems is unsupervised work and inconsistency in dispensing justice. Wojkowska and Cunningham (2010:98) add that the outcomes of informal or traditional justice cases “may be decided in contravention of human rights standards. Another problem is limited funding for informal justice systems since most assistance and resources are channelled to what is referred to as the ‘rule of law’ approach” (Wojkowska 2006:12).
Stapleton (2007:6) observes that, in reality, formal, traditional and informal justice systems operate side by side in many African countries and people in rural areas can choose which to use. Stapleton’s (2007:6) view is “that traditional and informal justice systems should be given greater recognition” especially in Africa’s rural areas because the Eurocentric justice system is not meeting the justice needs of all. It is worth noting that legal pluralism is not limited to African countries. Traditional and informal justice systems that pre-date colonialism continue to exists in countries with indigenous rural populations like India and the Philippines (Asia), Brazil and Argentina (South America), and Australia and New Zealand. An example is the ancient Indian practice of panchayats that is used as a form of dispute resolution in local communities. Continued
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use of panchayats in pursuit of democracy, de-centralisation and gender empowerment is well documented (Bryld, 2001:149; Buch, 2012:1; Dutam, 2014:32).
2.5 Access to Justice in the Republic of South Africa
In common with African and other countries with indigenous rural populations, legal pluralism exists in South Africa. McQuoid-Mason (2011:171) explains that access to justice in the South African context is two-pronged. The first is access to the socio-economic rights guaranteed in the Constitution (RSA, 1996), such as property, housing, health care, water, food, welfare, education, and social security. The second is access to legal advice and legal services. The application of multiple justice systems and the way in which each system works in South Africa is discussed in sections 2.6 to 2.9. For rule of law orthodoxy, emphasis is placed on the Domestic Violence Act (DVA) (No. 116 of 1998) since this study is concerned with the role of CBPs in handling domestic violence cases. Given CBPs’ interaction with the traditional justice system, this system is discussed in detail. Less emphasis is placed on the informal justice system as the following chapter is devoted to community restorative justice as an informal justice system. As noted earlier, brief mention is made of African living law in order to acknowledge its continued existence in locales such as mountainous hinterlands in rural KwaZulu-Natal (KZN).
2.6 The Formal Justice System in South Africa
In common with other southern African countries, South Africa inherited Roman Dutch law or codified civil law from the west. Access to justice in South Africa post-1994 has its foundation in the Constitution of the Republic of South Africa, Act 108 of 1996 (RSA, 1996) and Chapter Nine Institutions - state institutions that support constitutional democracy that were established to uphold human rights in the country. South Africa has also signed and ratified several international and regional treaties that promote access to justice, including the United Nations Convention on the Elimination of all Forms of Discrimination against Women (UN, 1979) and is therefore committed to putting measures in place to eliminate violence against women.
Poverty and negative perceptions may be barriers to poor people accessing the formal justice system.
According to South African Deputy Minister of Justice, John Jeffrey, “poverty continues to hamper people from exercising their right to access to justice and courts remain a very hostile, traumatic experience for many people; this discourages many from using these forums to advance their rights or settle disputes. This is not healthy in a democratic society” (New Age, Wednesday 16 0ctober 2013. Edition: S1-National (01)).
Jeffrey notes elsewhere that litigation is out of the reach of most poor and middle class South Africans; “it
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will cost a domestic worker two days wages for just 15 minutes of lawyer’s time” (Sunday Times Newspaper 20 October 2013).
Accessing justice in South Africa presents problems due to “gross socio-economic equalities and the remoteness of the law from most people’s lives” (Dugard, 2006:266), this includes physical access to lawyers and the courts. The apartheid system created challenges for poor people in remote areas to access lawyers as well as courts, since they are located in towns and cities; transport costs and road infrastructure are still a challenge for people living in these areas (SA Justice Sector and the Rule of Law, 2005:115).
To facilitate access to the formal justice system by the poor, the South African government, with the support of the legal profession, implements Judi care and pro bono programmes. McQuoid-Mason (2007:97-116) explains that, through “Judi care, cases that qualify for state assistance are referred to private practitioners who are paid by the state. This worked well when there were few cases and the “Legal Aid Board had sufficient resources to handle them administratively”. However, Cappelletti (1992:29) cites examples from France and Italy to show that such legal aid programmes fall short of efficiency and are not a positive step in solving the “problem of poor people’s access to justice”. Cappelletti (1992:29) further argues that, “the charity of the legal profession in a free-market society, implied forced labour for those burdened with it and in France with only the young and inexperienced lawyers expected to fulfil the honorific duty as a part of their training” it is ineffective. In Italy, legal aid was disliked, and “only one percent of the parties was able to enjoy such service” (Cappelletti, 1992:29). Jeffrey notes that, in South Africa, lawyers are more interested in making money than providing quality services to the rural poor (Sunday Times Newspaper 20 October 2013).
The pro bono scheme may result in poor quality representation, as lawyers do not regard these cases as important (McQuoid-Mason 2007:101; Walsh 2010:16). Furthermore, Cappelletti (1992:29) observes that,
“quite often the legal problems of the poor present special features of which the private lawyer might have no experience at all. Special courses on poverty law had to be introduced in the curricula of many law schools in the US”.
Recognising that the Judi care and pro bono models are having limited impact and are therefore unsuccessful in delivering justice to the poor, the South African government established Justice Centres through the South African Legal Aid Board, which incorporate public defenders and legal aid officers. McQuoid-Mason (2007:103) point out that paralegals are also employed at these centres to “assist with the initial screening of
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clients and private lawyers are used if the justice centre cannot handle a case and that the justice centres model works well in larger cities and towns, but not in rural areas where there is insufficient work to justify lawyers expenses”. State-funded public defenders are not public servants; the Legal Aid Board pays them as full-time lawyers. Cappelletti (1992:30) notes that, limited legal services are offered by private lawyers and they are often unable to offer counselling and education, which is necessary if they are to reach the poor.
Some public interest law firms in South Africa receive funding from foreign donors to provide services to poor people.
Finally, Cappelletti (1992:38) contends that it is important to pay attention to the problems, needs, and aspirations of the poor as well as the economic, cultural, psychological, linguistic and racial obstacles which so often make it difficult or impossible for the poor to access the formal justice system. In South Africa, a visit to court is expensive and transport is a problem. In some rural areas there is one bus in the morning to town and it returns in the afternoon. The language barrier is also a problem as English and Afrikaans are usually used in court. Crucial information is frequently lost in translation. Cultural barriers, especially for rural poor people, are a major impediment in accessing justice through the courts of law; remedies do not meet their needs and further alienate them from accessing justice (Hargovan, 2010:29). The apartheid legacy has not been eradicated; much remains to be done.
The discussion now turns to this rule of law.