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).

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.)
- Example: Where different legal systems conflict, legislation should explicitly grant supremacy to those laws that provide for gender equality and advance women’s human rights to prevent judicial determinations that otherwise discriminate against women. For example, in India, customary laws discriminated against tribal women in contrast to guarantees of equality in the Constitution. Although the Court acknowledged that customary inheritance laws violated women’s right to equality, it found “it was not desirable to declare customary law to be contrary to the rights of women under the Constitution of India and the rules of succession sometimes provide different treatment that is not necessarily equal.” (See: Madhu Kishwar and others v State of Bihar and others (1996) 5 SCC 125, in COHRE, Women and Housing Rights, 2^nded., 2008)

To avoid such results, drafters should ensure that any supremacy laws include outreach to local and customary leaders, as well as members of the judiciary, to facilitate the implementation of these guarantees.

Promising Practice: Some governments have recognized customary law and local government authorities’ decisions, but invalidate those laws that violate provisions in the constitution or civil code. Drafters should ensure that constitutional or civil code provisions comply with international human rights standards and respect women’s human rights.

Promising Practice: Drafters must take steps to adopt secondary legislation that implements constitutional protections and do so in a timely manner. 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.

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