Problems and Purpose

Recently, the state, development organizations, and donors have shifted their frameworks to include Customary Justice Systems into their development planning. However, external actors are often unaware of contextual and cultural norms and practices. In Namibia, women’s human rights are often overlooked, exemplified by practices of widow chasing/property grabbing, and the lack of female participation and representation in customary justice courts. [3] Customary Justice Systems, the state, and development organizations in Northern Namibia are working to place emphasis on gender inclusion, participation, and representation, through developing and implementing empowerment strategies.

Background History and Context

Namibia was colonized by Germany in 1884. The German colonizers set up labour camps to build a railroad for the extraction and export of natural resources, indenturing the indigenous population and enacting a genocide against the Herero tribe of Namibia. In 1915, during World War I the British intervened and claimed power over the land, recolonizing Namibia. Finally, in 1990, Namibia won its struggle for independence, however, the implications of colonization are still ever-present within the nation. Disparities between the white and black populations are significant as racism and racial segregation persist. An example of these disparities is the skewed post-colonial land distribution, with 44% of the privatized farming land belonging to a small white demographic and 43% of the communal land shared by the black community and regulated by customary law. [2] Throughout colonization, CJS were functioning to “govern” and support the marginalized, black communities in Northern Namibia, specifically Owambo. [2]

Namibia is a low-middle income country with a GDP per capita of 5.227.18 USD, ranking 125 on the Human Development Index 2007/08. There continues to be significant disparities, especially in regard to wealth distribution and racial and gender dynamics. Post-independence, in 1990, the emphasis placed on development by international donor organizations focused on enhancing legislation and legal institutions to “promote economic health, good governance, and human rights.” [3, 932]

Since the early 2000s, the state and development agencies have expressed an eager desire to work with customary justice systems, given that CJS is a highly established and respected structure amongst the majority of the population, who place value, trust and respect in it. [2] Additionally, the lack of access to the state over decades validated the marginalized population’s trust and reliance on CJS for knowledge and dispute settlement. [2] That being said, external stakeholders collaborating with CJS are often unaware and oblivious to the internal power hierarchies entrenched within CJS.

For example, the human rights violations against women within customary systems are often invisible, and many outsiders do not actively seek them out. Within CJS, dispute settlements are often handled by men, and therefore, disputes involving women are settled in the absence of them. Additionally, widow chasing/property grabbing, is a common practice, whereby women are evicted off their land and forced to move back in with their matrilineal families following the death of their husband. [3] Either women were forcefully displaced or were expected to pay a “fee” to the traditional elites to remain on the land. [2] At this time, there was no representation of women in positions of power nor were they advocating within customary courts. CJS is often hierarchical and patriarchal; some argue that colonization played a significant role in infantilizing women by degrading the value of their domestic and agricultural work. [3] The colonial rule supported the rising of men and the subordination of women, reinforcing Eurocentric gender stereotypes, through economically weakening women and diminishing women’s power within society. [3] Christian missionaries in Namibia also emphasized the subordinate position of women in society, cementing sexist ideologies and further violating women’s rights to equality. [3]

During a customary law workshop in Uukwambi, a Traditional Authority in Owambo, in 1993, customary elites unanimously decided to work towards dismantling gender-based hierarchy by empowering women to actively participate in CJS by ensuring representation. [1] Following this shift, women were appointed to hold leadership positions in various communities that encouraged women to actively participate within civil society. Additionally, in Uukwambi’s Traditional Authority, widow protection was eventually integrated into law. [3]

Organizing, Supporting, and Funding Entities

The International Development Law Organization (IDLO) spearheaded the process of empowerment by creating a project plan for the involvement of women within Customary Justice Systems. The IDLO has a team of project managers that are working in partnership with the Legal Assistance Centre (LAC) and customary elites, who are supporting research endeavours on customary legal empowerment. [2] Women’s Action for Development (WAD) have Community Voice Members from each constituency, to help gain a deeper contextual understanding and determine the needs of the beneficiaries. [2] These organizations provide the funds for community workshops and implementation of research.

The state played an important role in collaborating on this initiative, as customary law was formally recognized in Namibia’s constitution Article 66(1) and Article 19, which validates the right of communities to culture and tradition. [2] Additionally the state focused on developing institutional linkages with CJS, specifically in relation to customary norms, customary dispute resolution mechanisms, and customary administration. [4] The goal of doing so was to ensure human rights are present in customary norms, dispute settlement, and administration in order to prevent power from being misused by elites. [4]

The customary elites held a significant stake, in that traditional customary justice systems violated women’s rights to be active members in society. Unified decisions were made in the Traditional Authority of Uukwambi to empower women to participate and be leaders, along with abolishing customary practices like widow chasing/property grabbing. A majority of the Namibian population had limited access to legal administrations and overall access to the state. Therefore, they relied on customary elites, given the elites’ accessibility, affordability, and shared, cultural knowledge, fostering a strong sense of trust between the community and CJS. [4]

Women also need to be recognized in their readiness to uphold leadership positions, develop relationships, and participate to both cooperate with pre-existing CJS practices, but to also be disruptive in ensuring their voices are being accounted for.

Participant Recruitment and Selection

A special effort was made to include women and focus on empowering them in attaining their deserved seat at the table, especially in spaces of customary court proceedings and dispute settlements. Each village was responsible for appointing a woman deputy chief in Uukwambi - the Traditional Authority in Owambo – in the Northern region of Namibia. [2] There was a specific emphasis on having discussions of empowerment with women from the Uukwambi and traditional elites, as the community worked towards gender inclusion and women empowerment as a target for successful citizen participation. [2]

Methods and Tools Used

IDLO and WAD, in harmony with Traditional Authorities, conducted semi-structured interviews, including all stakeholders from nine villages in Uukwambi, led six focus group discussions with development organizations and the Uukwambi and Ondonga Traditional Authority, and conducted a survey across twelve villages. [2] The programming included legal literacy training, community mapping of local land rights, rights education campaigns, and the deployment of paralegals. [4]

What Went On: Process, Interaction, and Participation

IDLO and WAD conducted research with the aim of enhancing customary justice through female participation and representation. They conducted focus groups with Traditional Authorities, women, various stakeholders (funders, state, etc.), and conducted a survey across twelve villages. [2] This continued a dialogue about inclusivity from within the customary justice system and enabled innovative ideas of inclusion to come about.

Uukwambi, a Traditional Authority in Owambo, had been encouraging female leadership pre-independence in the 1980s, appointing a woman as deputy chief. [3] In 1993, post-independence, there was a customary law workshop where the leaders of Uukwambi unanimously decided that women have the right to be fully engaged in customary courts. [3] Customary Justice Systems, are unwritten and negotiable – a dynamic that enabled leaders to adopt rhetoric and practices of gender inclusivity and empowerment. All villages were encouraged to select a woman as a representative for deputy, promoting empowerment through representation. [3] As a result of having women in leadership positions, more women felt comfortable to participate in customary courts and actively engage in proceedings. Women were given authority to be judges and also act as witnesses, bringing their own issues to the forefront to be heard and addressed. [3] According to Ubink, “Female respondents were significantly more positive about the traditional court proceedings in female-headed villages, in terms of overall performance; ability to participate in proceedings; and the equal division of power among the sexes.” [1, 938] That being said, elderly women still felt hesitant to participate, for they had grown up surrounded by more conventional norms of patriarchy. [1]

At the state level, the government transformed the Department of Women’s Affairs into the Ministry of Gender Equality and Child Welfare, passing many laws to protect women’s human rights. [2] Additionally, the Law Reform and Development Commission continues to fund research projects in the field to have a more contextually holistic understanding of women’s positionality in affairs related to marriage, divorce and succession.[2] Various pieces of legislation were passed; the Traditional Authorities were delegated more power within the constitution with the Traditional Authorities Act in 2000. [3] Additionally, the Communal Land Reform Act 5 of 2005, rejected widow shaming/property grabbing, ensuring that widows inherited their deceased husband’s land without having to pay fees to live on that land. [2]

Tangible results produced by the state in harmony with CJS were the abolishing of the widow chasing/property grabbing practice, and the institutionalization – to the degree it manifests in CJS – of female leadership, representation, and participation. Six Owambo Traditional Authorities unanimously decided to create laws against widow chasing and land grabbing, and made a commitment to promoting the welfare of widows. [1] The shift exists in seeing women as autonomous beings with a voice – their invisibility was beginning to be made visible. Women also participated in formal dispute settlements, a right written into Uukwambi customary law. [1] Within a broader context, women were pivotal in the battle for independence and in the functioning of rural communities. That being said, women are still outnumbered by men and face many challenges, such as being excluded from conversations within CJS, even though they may hold leadership positions. [1] However, with the progression of time, the resistance to women in leadership roles has seemingly dissipated.

Influence, Outcomes, and Effects

The product of many discussions was that community members – women and men – felt as though the goal of inclusivity and empowerment was being met. 72% of the women surveyed felt like they could actively participate given that there were head-women in customary courts. [1] Men, however, still prefer other men to be leaders, in that their leadership styles are conventional. [1] That being said, head-women don’t deter men from actively engaging in customary justice systems and men’s traditional views evolved as they witnessed women’s leadership capacities. [1]

At first, women felt as though they were intentionally being excluded from conversations, even though they held the title of deputy. [1] That being said, as their leadership capacities grew, women and men in positions of power were both recipients to equal support. Women participating in CJS were making an active decision to mobilize their rights through being present and being their own advocates. It is through the support of the Traditional Authority, who held a significant stake in the initiation of women empowerment in CJS and the women who participated, that change occurred.

Additionally, the semi-structured interviews conducted by development organizations reported that norms were evolving, and gender inclusivity was being embraced, with a significantly dropping rate of widow chasing cases, especially since 1993. [3] According to the general consensus and statistics produced, the intended results of women participation and representation within customary legal, justice systems was met successfully. Other outcomes produced were newfound insight on the positive and negative implications of CJS, state and CJS relations, and human rights standards in terms of gender equality. [3]

Analysis and Lessons Learned

The inclusion and empowerment of women into Customary Justice Systems was effective in that various actors mobilized to attain a common goal. The state’s need to reroute its approach to law and governance, the development organizations’ agendas to focus on integration of customary systems and grassroots development, and the growing concerns of gender inequality within the Traditional Authority aligned, therefore, sharing a common purpose of promoting representation and participation of women in customary legal practices. The development organizations – WAD and IDLO – bridged the gap between the state and Traditional Authority by sharing information, providing trainings, and lobbying for legislation changes. These relationships and practices enabled human rights to be included into customary norms, state administration, and dispute resolution, creating a sense of accountability amongst all actors. [3]

The representation of women in positions of power, was a strategic success in encouraging empowerment and citizen mobilization. The key to engagement was ensuring that the marginalized, in this case women, had a seat at the table that made life-altering decisions for their community. Representation within CJS empowered women to share their ideas, concerns, convictions and struggles.

The localization of this endeavour was specifically narrowed down to the Uukwambi Traditional Authority, leaving out other regions that also need to focus on gender equality and human rights inclusion within customary legal practices. Patriarchy is conditioned within much of Namibian society, especially post-colonization, and it is pivotal that the learnings from Uukwambi are shared and even enhanced in implementation elsewhere.

From the statistics and focus groups, the general consensus seems to be that women and men are satisfied with the outcome, as patriarchal norms are continually being rejected, in aims of assuring gender equality in CJS. However, the effort to dismantle internal power dynamics continues, as internalized sexism and gender stereotypes persist. That being said, the progress over the last two decades to create a more equitable and inclusive Customary Justice System has been exponential and continues to empower women in Namibian society.

See Also

References

[1] Ubink, J.M. (2011b) ‘Gender Equality on the Horizon? The Case of Uukwambi Traditional Authority, Northern Namibia’, in E. Harper (ed.) Enhancing Legal Empowerment through Engagement with Customary Justice Systems, pp. 51–71. Rome: International Development Law Organization. https://openaccess.leidenuniv.nl/handle/1887/32309

[2] Ubink, J.M. and B. van Rooij (2011) ‘Towards Customary Legal Empowerment: An Introduction’, in J.M. Ubink (ed.) Customary Justice: Perspectives on Legal Empowerment, pp. 7–27. Rome: International Development Law Organization.

[3] Ubink, J. (2018), Customary Legal Empowerment in Namibia and Ghana? Lessons about Access, Power and Participation in Non-state Justice Systems. Development and Change, 49: 930-950. doi:10.1111/dech.12415

[4] Ubink, J. (2010). Towards Customary Legal Empowerment in Namibia Concept Note [Ebook] (pp. 1-16). International Development Law Organization. Retrieved 10 April 2020, from https://openaccess.leidenuniv.nl/bitstream/handle/1887/16604/namibia_conceptnote.pdf?sequence=1.

External Links

Notes

The initial version of the case was produced and submitted by an undergraduate student at the Centre for Critical Development Studies at the University of Toronto Scarborough with the support of UofT graduate students, Kieran Way, Reem Sheikh-Khalil, and Nyanquoi Suah.