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Types of reform and regulation

Legal reform and regulation of the informal justice sector can take many forms:

  • Including strategies for the informal sector in the development of national action plans on violence against women and justice sector reform.
  • Using constitutional reform processes as an entry point to encourage compliance by informal mechanisms with human rights practices.

 

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

 

  • Clarifying links between the jurisdiction of informal systems and the formal sector; specifically, what types of cases can be dealt with by the informal sector and how cases or judgments in one sector relate to the other sectors.

 

Example: South Africa’s 1998 Recognition of Customary Marriages Act guarantees the same legal rights to women in customary or civil marriages if the marriage is registered.

 

  • Enhancing legislative support for training and supervision of the informal sector.
  • Drafting and enacting superseding legislation that addresses discriminatory provisions in religious or customary laws and ensures that those provisions apply to all people.

 

Examples:

In Tanzania, the Village Land Act provides for equal representation of women on village adjudication committees and village land councils in order to address issues of gender inequity in customary systems that allocate land rights.

In Uganda, the law also includes a provision that declares judgments of local land committees null and void if they prevent women and children from inheriting and reserves 25% of spots on local committees for women.

 

  • Use of local laws to change practices of informal justice mechanisms and to push reform at the national level.

 

Uganda – Local Council Courts apply Local By-Law on Domestic Violence
The Local Council Courts in Uganda began as village-level “resistance” councils during Uganda’s civil war in the 1980s. They operated in areas where the state had lost control and were composed of members elected by all adults in a particular village. The resistance council would also act as a case resolution mechanism. After the regime change in Uganda, resistance council courts were formally incorporated into law and now are known as Local Council Courts. Despite the fact that domestic violence is a serious concern in Uganda, with government studies showing the prevalence at 70%, there was no law prohibiting domestic violence in Uganda until 2009.

The passage of the local by-law was in part the result of ground-up efforts. The community of Kawempe, led by local non-governmental organization Centre for Domestic Violence Prevention (CEDOVIP), had passed a local by-law prohibiting domestic violence two years earlier. CEDOVIP had worked with parish-level councilors to gain support for the by-law and had ultimately gained the support of all parish level leaders. But when the advocacy efforts reached the Division level in 2006, councilors used the proposed by-law as a political issue. Both sides used the proposed law for their own political gain and misrepresented provisions of the law. As a result, the by-law did not pass at the Division level on the first try. CEDOVIP decided to work one-on-one with each member of the Division leadership. Over the next several months, CEDOVIP and community members worked through individual meetings, community forums, and meetings with police and local leaders, as well as text message and phone call advocacy to Division councilors. The local Domestic Violence By-Law was passed in October 2007.

The law provides direction to the Local Council Courts – often the first place that women seek justice – on how to deal with domestic violence cases. The by-law regulates the way in which cases of domestic violence are to be conducted providing guidelines on summoning suspects, conducting trials, and the number of people required for a quorum for judgment. It also contains jurisdictional provisions requiring that criminal matters be referred to the Police Family and Child Protection Units.

See the Legislation Module for information about the content of effective domestic violence laws.

Sources: CEDOVIP. 2001. Kawempe Division passes first ever domestic violence by-law in Uganda; Penal Reform International. 2000. Access to Justice in sub-Saharan Africa: The role of traditional and informal justice systems, pp.49-50, 60-62.