Thursday, March 2, 2017
How can women access their rights?
According to independent studies, millions of women are getting difficulties in accessing justice in our society across Tanzania. There are many forces/factors behind such scenario--including complexity nature of social and cultural norms, deeply rooted legal structural obstacles and discriminatory gender norms—all of these prevent women from accessing justice. Some barriers are typical ignorance of the law and its procedures and knowing where exactly to go to access justice, unavailability of widely circulated legal aid scheme in the country. One can ask do we have laws which protect rights of women. If they really exist, are they gender sensitive and well-structured, are they fair and balanced? How are they are enforced, particularly when it comes to the question of addressing grievances of women in the society?. Are there any mechanisms that enhance women to get to know their rights, are there laws that are on their side. Is there any informal system that addresses women’s grievances? “Of course, we have laws that these are bias and discriminatory to women, because there are millions of women who are still suffering in the presence of the so-called women protection laws,” said James Marenga, High Court Advocate and Media Consultant based in Dar es Salaam. “Most of the cases about women rights are resolved through informal systems which are not effective, they left women unprotected,” added Marange. The United Nations and the Rule of law provides that in developing countries, up to 80% of the cases are resolved by informal justice systems often referred to as “traditional”, “indigenous”, “customary” or “non-state” justice systems. This signifies that most women in the developing world access justice in a plural legal environment. In Tanzania, women are facing injustices simply due to their gender, some injustices are justified by cultural norms and others are given authority by laws for example in the customary law such as Declaration Order of 1963, which considers women as second class citizens after men. This law do not allow women to inherent land, places them under the supervision of men, something which is against CEDAW obligation to state parties. CEDAW is an international Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). The international treaty was adopted in 1979 by the United Nations General Assembly. Described as an international bill of rights for women, it was instituted on 3 September 1981 and has been ratified by 189 states, including Tanzania. The treaty requires state parties to modify gender stereo types (article 5(a) and address socio-cultural barriers that prevent women from claiming their rights. In fact, the instrument plays an important role and it is an essential tool for advancing women’s rights and gender equality. With strong practice of rule of law, with an accessible and just legal system, women can succeed and contribute to the system. The rule of law lays principle of non-biasness of laws and non-discrimination laws that are equally enforced and independently adjudicated, and consistent with international human rights norms and standards. As such, a strong and effective legal system based on the rule of law is central to assisting women to become equal partners in decision-making and development. CEDAW committee gives direction through its General Recommendation No. 33, 2015 on Women Access to Justice in para. II(A) which provides issues that are barrier to women to access justice. The non-availability of judicial and quasi-judicial bodies in rural and remote areas, the time and money needed to access judicial bodies, the complexity nature of proceedings, the lack of access to quality, gender competent legal aid, as well as the deficiencies of quality of justice systems for example gender-insensitive decisions due to the lack of trainings, delays and excessive length of proceedings, corruption all of these prevent women from accessing justice. The committee proposes six interrelated and essential components — justifiability, availability, accessibility, good-quality, accountability of justice systems, and the provision of remedies for victims are necessary to ensure access to justice. Justifiability requires the unhindered access by women to justice as well as their ability and empowerment to claim their rights under the Convention as legal entitlements. Also it encourages cooperate with civil society and community-based organizations to develop sustainable mechanisms to support women’s access to justice. Availability requires the establishment of courts and other quasi-judicial or other bodies across the State Party in both urban, rural and remote areas, as well as their maintenance and funding. Accessibility requires that all justice systems, both formal and quasi-judicial systems, are secure, affordable and physically accessible to women, and are adapted and appropriate to the needs of women including those who face intersectional or compounded forms of discrimination. Good quality of justice systems requires that all components of the system adhere to international standards of competence, efficiency, independence and impartiality and provide, in a timely fashion, appropriate and effective remedies that are enforced and that lead to sustainable gender-sensitive dispute resolution for all women and take account of the increasing demands for justice by women. Provision of remedies requires the ability of women to receive from justice systems viable protection and meaningful redress for any harm that they may suffer . Accountability of justice systems is ensured through the monitoring of the functioning of justice systems to guarantee that they are in accordance with the principles of justifiability, availability, accessibility, good quality and provision of remedies. The accountability of justice systems also refers to the monitoring of the actions of justice system professionals and of their legal responsibility in cases in which they violate the law. According to field reports prepared by the Legal Services Facility (LSF), most of women facing injustices to go to seek justice from cell-leader, Village executive officers, ward executive officers, religious leaders, family members, but few of them go to formal judicial mechanisms. The trends raise several critical questions—are these informal mechanisms meet standard of good quality justice systems in addressing women’s issues? Do women access justice from such type of informal bodies, how are these bodies exposed to gender sensitiveness of handling such cases? Also looking at women’s status quo in legal knowledge and redress, how are they empowered in claiming their rights when facing grievances in the society? “We need to adopt proper and workable approaches in order handle women cases/issues professionally and make sure they access rights,” said Fortunata Kitokesya, programme officer and in-charge of women desk at LSF—a basket funding mechanism which provides funding to legal aid organizations involved in legal aid services to the needy people across Tanzania. She says are multiple approaches to address hindrance of women accessing justice. One is legal empowerment approach which can play pertinent role to address the women justice predicament. Legal empowerment entails giving power to the people, enabling people to use law to advance their rights. In accordance to IDLO’s study on Access to Justice: models,, strategies and best practices on women’s empowerment--2013, there are ranges of legal empowerment approaches that aim at empowering women to access justice. For example, legal education provided by trained paralegals, legal training to informal leaders (who are closer to the community and first to be approached by victims) on gender equality, strategic litigation which aims at changing discriminatory laws and the provision of legal services and the creation of a space for women to question and negotiate discriminatory ‘cultural’ norms. “Legal empowerment strategies can progressively empower women by making them know the law, use the law and change their lives through laws that are gender sensitive. By empowering women to claim their rights, women are better strengthened to bring about change in their communities.” “However, the legal empowerment framework should be bottom – up approach, involvement of community, middle level interventions which includes local government and upper level where judiciary, central government institution are involved to make women empowerment meaningful. With availability of trained paralegals in the country who are in every district, there is room of mitigating the unavailability and inaccessibility of legal aid in the country,” said LSF official. To make it much productive the legal empowerment of women should go hand in hand with legal and institutional reforms and finally make progress in making women’s rights a reality, according to her.