From 2011, Namibia has begun implementing its Community Courts Act of 2003, which formally recogn... more From 2011, Namibia has begun implementing its Community Courts Act of 2003, which formally recognizes Namibia’s Traditional Courts and creates linkages between the customary and the state legal system. The Act envisages several procedural changes in the operation of Traditional Courts and this article evaluates whether these changes are likely to empower women to make more effective use of the customary justice system. The article describes and analyzes customary procedures in Traditional Courts in the Kunene, Caprivi and Oshana regions of Namibia. It specifically focuses on three prominent characteristics of customary justice systems: their restorative nature, their flexibility and their gendered impact. The article finds that several procedural aspects form barriers to women’s access and participation in Traditional Courts. These aspects include unclear planning and time-consuming procedures, the lack of female councilors, and cultural barriers for women to report cases. The article furthermore shows that customary justice systems’ negotiable and flexible character also forms a likely barrier for women as they often do not have the same knowledge and bargaining power in Traditional Courts as their male counterparts. The article concludes that while the Community Courts Act is likely to impact positively on the administration of justice by the Traditional Courts through the allocation of stronger powers to serve processes, summon witnesses, and enforce decisions, the Act does not address the procedural issues identified as detrimental to women’s customary legal empowerment.
Aninka Claassens is an academic and practitioner who has worked since 1982 as a land activist and... more Aninka Claassens is an academic and practitioner who has worked since 1982 as a land activist and academic in the field of legal pluralism in South Africa. During the apartheid era she worked for the women’s anti-apartheid organization the Black Sash, supporting rural communities who resisted forced removals from their land and homes. In 1990 she moved to the Law Faculty at the University of the Witwatersrand where she became involved in land policy work alongside her ongoing role in supporting rural communities involved in anti-bantusan resistance and land re-occupations. She joined the ANC land desk and participated in the drafting of the early land reform laws that were introduced between 1994 and 1999. However, as the ANC policy direction began to shift in favour of supporting traditional leaders rather than the land rights of vulnerable groups, she became involved in litigation, challenging laws such as the 2003 Traditional Leadership and Governance Framework Act of 2003 and the Communal Land Rights Act (CLRA) of 2004. The CLRA was ultimately struck down by the Constitutional Court in 2010. She also supported litigation upholding participatory and inclusive versions of “living” customary law in the face of discrimination derived from distorted versions of “official” customary law. In 2009 she joined the University of Cape Town and later founded the Land and Accountability Research Centre (LARC), which she directed until 2019. LARC forms part of a collaborative network, constituted as the Alliance for Rural Democracy, which provides strategic support to struggles for the recognition and protection of rights and living customary law in the former homeland areas of South Africa. Aninka’s research is mainly focused on the nature and content of customary law in South Africa, particularly regarding the tensions between the jurisprudence of unwritten “living” customary law emanating from judgments of the Constitutional Court, and the autocratic versions of custom inherited from colonialism and apartheid that have been reinforced by traditional leadership laws enacted since 2003. These laws have sought to transfer freehold ownership of the “communal” land in the former homelands to traditional leaders at the expense of pre-existing customary law ownership rights that have vested in families over generations. The laws have also sought to centralize decision-making power and authority in the hands of
Developing countries are hard-pressed to provide affordable good-quality dispute settlement to th... more Developing countries are hard-pressed to provide affordable good-quality dispute settlement to their population. Malawi is a case in point, where Parliament in 2011 passed the Local Courts Act to remedy the profound lack of access to justice in the country. The proposed Local Courts are hybrid institutions that combine characteristics of state and customary fora. This article analyses the probable impact of Local Courts on people’s access to legal institutions and the quality of the justice they provide compared to Magistrate Courts and informal Traditional Tribunals. It furthermore discusses whether it is likely that the Local Courts be abused for suppression of political opposition as happened in the Traditional Courts, hybrid courts operating in Malawi from 1969 to 1994 during the regime of President-dictator Kamuzu Banda. The Traditional Courts invoked custom and tradition whenever the law did not serve them. This exceptional use of chief-led courts to circumvent the regular courts and subdue dissent poses the salient question whether courts that can apply custom are more vulnerable to political abuse due to certain characteristics of customary law. This article presents a valuable lesson for other developing countries reforming their customary justice sector: While certain characteristics of customary law that are crucial to their functioning – their unwritten, negotiable and relational character and their flexible procedures – have a shadow-side in that they can facilitate abuse, the enabling and determining factor of such abuse lies in the undemocratic constellation of the country and the lack of independence of its judges.
... Engelbronner-Kolff, et al. 1998: XII-XIII; Keulder 1998; Kyed and Buur 2005: 4; Lutz and Lind... more ... Engelbronner-Kolff, et al. 1998: XII-XIII; Keulder 1998; Kyed and Buur 2005: 4; Lutz and Linder 2004: 38-9; National Democratic Institute for International Affairs 1995: 7, 15; Omoding-Okwalinga 1984; Ray, et al. 1997; Ray and ...
From 2011, Namibia has begun implementing its Community Courts Act of 2003, which formally recogn... more From 2011, Namibia has begun implementing its Community Courts Act of 2003, which formally recognizes Namibia’s Traditional Courts and creates linkages between the customary and the state legal system. The Act envisages several procedural changes in the operation of Traditional Courts and this article evaluates whether these changes are likely to empower women to make more effective use of the customary justice system. The article describes and analyzes customary procedures in Traditional Courts in the Kunene, Caprivi and Oshana regions of Namibia. It specifically focuses on three prominent characteristics of customary justice systems: their restorative nature, their flexibility and their gendered impact. The article finds that several procedural aspects form barriers to women’s access and participation in Traditional Courts. These aspects include unclear planning and time-consuming procedures, the lack of female councilors, and cultural barriers for women to report cases. The article furthermore shows that customary justice systems’ negotiable and flexible character also forms a likely barrier for women as they often do not have the same knowledge and bargaining power in Traditional Courts as their male counterparts. The article concludes that while the Community Courts Act is likely to impact positively on the administration of justice by the Traditional Courts through the allocation of stronger powers to serve processes, summon witnesses, and enforce decisions, the Act does not address the procedural issues identified as detrimental to women’s customary legal empowerment.
Aninka Claassens is an academic and practitioner who has worked since 1982 as a land activist and... more Aninka Claassens is an academic and practitioner who has worked since 1982 as a land activist and academic in the field of legal pluralism in South Africa. During the apartheid era she worked for the women’s anti-apartheid organization the Black Sash, supporting rural communities who resisted forced removals from their land and homes. In 1990 she moved to the Law Faculty at the University of the Witwatersrand where she became involved in land policy work alongside her ongoing role in supporting rural communities involved in anti-bantusan resistance and land re-occupations. She joined the ANC land desk and participated in the drafting of the early land reform laws that were introduced between 1994 and 1999. However, as the ANC policy direction began to shift in favour of supporting traditional leaders rather than the land rights of vulnerable groups, she became involved in litigation, challenging laws such as the 2003 Traditional Leadership and Governance Framework Act of 2003 and the Communal Land Rights Act (CLRA) of 2004. The CLRA was ultimately struck down by the Constitutional Court in 2010. She also supported litigation upholding participatory and inclusive versions of “living” customary law in the face of discrimination derived from distorted versions of “official” customary law. In 2009 she joined the University of Cape Town and later founded the Land and Accountability Research Centre (LARC), which she directed until 2019. LARC forms part of a collaborative network, constituted as the Alliance for Rural Democracy, which provides strategic support to struggles for the recognition and protection of rights and living customary law in the former homeland areas of South Africa. Aninka’s research is mainly focused on the nature and content of customary law in South Africa, particularly regarding the tensions between the jurisprudence of unwritten “living” customary law emanating from judgments of the Constitutional Court, and the autocratic versions of custom inherited from colonialism and apartheid that have been reinforced by traditional leadership laws enacted since 2003. These laws have sought to transfer freehold ownership of the “communal” land in the former homelands to traditional leaders at the expense of pre-existing customary law ownership rights that have vested in families over generations. The laws have also sought to centralize decision-making power and authority in the hands of
Developing countries are hard-pressed to provide affordable good-quality dispute settlement to th... more Developing countries are hard-pressed to provide affordable good-quality dispute settlement to their population. Malawi is a case in point, where Parliament in 2011 passed the Local Courts Act to remedy the profound lack of access to justice in the country. The proposed Local Courts are hybrid institutions that combine characteristics of state and customary fora. This article analyses the probable impact of Local Courts on people’s access to legal institutions and the quality of the justice they provide compared to Magistrate Courts and informal Traditional Tribunals. It furthermore discusses whether it is likely that the Local Courts be abused for suppression of political opposition as happened in the Traditional Courts, hybrid courts operating in Malawi from 1969 to 1994 during the regime of President-dictator Kamuzu Banda. The Traditional Courts invoked custom and tradition whenever the law did not serve them. This exceptional use of chief-led courts to circumvent the regular courts and subdue dissent poses the salient question whether courts that can apply custom are more vulnerable to political abuse due to certain characteristics of customary law. This article presents a valuable lesson for other developing countries reforming their customary justice sector: While certain characteristics of customary law that are crucial to their functioning – their unwritten, negotiable and relational character and their flexible procedures – have a shadow-side in that they can facilitate abuse, the enabling and determining factor of such abuse lies in the undemocratic constellation of the country and the lack of independence of its judges.
... Engelbronner-Kolff, et al. 1998: XII-XIII; Keulder 1998; Kyed and Buur 2005: 4; Lutz and Lind... more ... Engelbronner-Kolff, et al. 1998: XII-XIII; Keulder 1998; Kyed and Buur 2005: 4; Lutz and Linder 2004: 38-9; National Democratic Institute for International Affairs 1995: 7, 15; Omoding-Okwalinga 1984; Ray, et al. 1997; Ray and ...
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