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Addressing customary laws and practices that conflict with formal laws

  • Many countries have legal systems that are divided into separate legal systems: formal, customary, and even state-sanctioned customary legal systems may co-exist. Conflicts among these systems, both in the written laws and their application, can arise. While one system may provide protection to women from discrimination, another system may conflict in law or practice to discriminate against women.
  • The UN Handbook for Legislation on Violence against Women recommends that conflicts between customary and formal laws should be resolved in a manner that respects the survivor’s human rights and principles of gender equality (p. 15). This generally is done through a clause specifying that customary law is invalid to the extent that it violates Constitutional and human rights principles.
  • In addition, use of a customary adjudication mechanism should not preclude the complainant/survivor from accessing the formal justice system. (UN Handbook for Legislation on Violence against Women, p. 15.)

 

Illustrative Examples:

Kenya’s Constitution (2010) specifies that “Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid. (Art. 2(4)) The Constitution also makes general principles of international law and all ratified treaties a part of the domestic law of Kenya. (Art. 2(5)-(6))

Malawi’s Constitution states that laws shall be enacted to eradicate customs and practices that discriminate against women. Article 24(2) states:  

Any law that discriminates against women on the basis of gender or marital status shall be invalid and legislation shall be passed to eliminate customs and practices that discriminate against women, particularly practices such as--

(a) sexual abuse, harassment and violence;

(b) discrimination in work, business and public affairs; and

(c) deprivation of property, including property obtained by inheritance.

 

 

 

Promising Practice: Engaging Elders to Protect Widows in Kenya

Kenyan women have equal rights to inherit and own property, but in many communities, customary systems continue to deny widows their rights. Even if a woman wins a case in the formal courts, it may be very difficult for her to return to her home and community after challenging traditional norms. A Kenyan NGO, KELIN, developed an alternative approach for accessing justice for widows and their children who had been disinherited. Working with customary legal structures in Homa Bay and Kisumu, on the shores of Lake Victoria, KELIN helped rebuild community-based justice systems so that they respect Kenyan law and human rights. KELIN held community dialogues with widows, elders, and government officials to get their buy-in for the project. They then conducted trainings for elders and widows on the human rights provisions of Kenyan property and inheritance laws. Customary structures now are more equipped to address inheritance disputes.  KELIN has taken on more than 100 cases involving disinheritance, the vast majority of which have been resolved with women and children back on their land. Cases adjudicated in this way take much less time than in the formal courts; an average of three months to resolve, compared to the average three years for court cases. Additionally, KELIN, has partnered with communities to construct houses for the most vulnerable widows, further contributing to raising awareness of widows’ rights to inherit and strengthening the bond between widows and the community. The United Nations Global Commission on HIV and the Law applauded KELIN’s work in a July 2012 report, and the program was nominated for an Innovating Justice Award. KELIN’s work is documented in a tool outlining its step-by-step process for engaging traditional community structures and elders to protect human rights. See: Risk, Rights and Health, p. 68 (UNDP, 2012).