*By Temelso Gashaw Getahun
“The world's most popular man reaches 80 and ponders buying a wife in exchange for 60 cows.” This was how Nelson Mandela's marriage had headlined by the Western media in 1998. Mandela’s prioritization of constitutionally recognized local customary legal system of marriage had led to the questioning of his struggle for freedom which is an aspirational experience to the world. Such imprudent characterization of indigenous law and institutions stems from the conception that all customary and religious laws are an affront to the rights of women.
Under normal circumstances, it can be argued that parallel operationalization of local customary and religious laws with the formal legal system does not necessarily disadvantage Ethiopian women so long as these normative orderings are harmonious with international human right standards. However, due to the COVID-19 global pandemic, courts around the country are either closed or operating under new hours with limited types of cases being heard. The unfolding unprecedented global situation is widening the justice gap in general and affecting women's access to justice in particular. Under the condition of keeping an adequate physical distance between disputant and arbitrators, non-state adjudicatory mechanisms can play a significant role in filling such gaps, if measures are taken to adequately provide the needed distancing and healthcare measures in such customary adjudicatory hearings as well.
From the cumulative reading of Article 9(1) and Article 91(1) of the Ethiopian Constitution, we can understand that legal pluralist ethos had extensively been considered during the process of Constitutional formation. Besides binding international treaties ratified by Ethiopia, these provisions impose an obligation on the government to “support, the growth and enrichment of cultures and traditions that are compatible with fundamental rights, human dignity, democratic norms and ideals” The Constitution has also recognized the possibility of adjudicating personal and family matters through customary and religious laws.
However, there have long been debates regarding such wide range recognition of non-state law and institution. Rakeb Messele argues that it will ultimately have detrimental effect on the rights of women reasoning that religious and customary laws are still discriminatory and oppressive. The possible conflict between recognition of the informal justice system and individual rights of vulnerable groups such as women and children creates what is best described as “the paradox of multicultural vulnerability”. It has been suggested by Celestine I. Nyamu that the best mechanism of resolving such paradox is to subjugate customary and religious norms by declaring them illegal. Scholars like Donovan and Getachew, on the other hand, endorses the coexistence of various normative ordering in one political space even beyond its current scope.
Despite their discriminatory nature, a study conducted in 2012 found that most women prefer customary institutions over the formal legal system. For anyone who has preconceived opinions about women’s choice in accessing justice, this finding may cast doubt. Different factors affect the choices women make in seeking justice, among them, is women’s fear of social repercussion—where in most communities, women’s prioritization of the formal legal system is perceived as disrespect to the local elders and this ultimately creates social pressure. The second factor is the lack of widespread community legitimacy of the formal justice system akin to its weak enforcement of decisions. Thirdly, for a large proportion of the rural population, the formal justice system is over-burdened, time-consuming and expensive. Hence, the modern legal apparatus has very limited outreach to grassroots communities.
On the contrary, the cultural and religious justice system provides an option that is more readily available – in terms of cost, vicinity, language, shared culture and values. The issue of gender justice is imperative, and it should not be underestimated in any way, and measures should be put in place to ensure that customary legal systems are gender sensitive. Nevertheless, exclusive reliance on the modern legal system and abundance of traditional law and institutions may not be the solution particularly during a global pandemic.
The only sustainable way of averting such problems, and to plan for effective future utilization of customary legal systems whether in a time of global crises or in “normal” times, is to engage in transforming the attitude of the community through dialogue and consultation instead of throwing away their rules and dismantling their institutions. If the goal is to make legal systems sensitive to women and gender issues, we should look to overhaul all legal systems, and not focus only on the statutory courts as the best arena for enforcing women’s rights.
Temelso Gashaw Getahun is an Assistant Lecturer at Mizan-Tepi University (Ethiopia).Currently,he is pursuing his LLM degree in International Human Rights Law at Central European University.
The views expressed in this entry belong solely to the author.