“Gender and Access to Justice: Observations from Regional Experiences”

1. “Gender and Access to Justice: Observations from Regional Experiences”   Rea Abada Chiongson Gender and Justice Adviser Justice for the Poor Program, World Bank *The views expressed are those of the author alone, and should not be attributed to the World Bank, its executive directors, or the countries they represent.

2. Justice for the Poor A multi-country World Bank initiative that looks into the theoretical and practical challenges of promoting justice reform with the context of legal pluralism Key approaches: • Justice initiatives within broader development processes • Demand-oriented and community-driven • Perspectives of users, especially marginalized

3. Selected Initiatives • Vanuatu and Island Courts (See Preliminary Research Findings on Island Courts in Vanuatu, J4P Vanuatu, 2010) • Solomon Islands and Women’s Access to Land (See Preliminary Research Findings on Island Courts in Vanuatu, J4P Vanuatu, 2010) • Kenya and Women’s Access to Justice (See The Illusion of Inclusion: Women’s Access to Rights in Northern Kenya, Benita Ayuko and Tanja Chopra, J4P Report, December 2008)

4. Vanuatu and Island Courts Research Findings: • Reconciliation of domestic violence cases • Child maintenance cases – order to live together - “win-win” situation • Options- men should not be forced to go back into the relationship, but women should • Uneven application and competence • Lack of enforcement or follow through • Tension between individual rights and community value of reconciliation (reflect customs rather than State legal system) From: Preliminary Research Findings on Island Courts in Vanuatu, J4P Vanuatu, 2010

5. Solomon Islands and Access to Land • Intersection of customary and state legal systems allow only a small number of individuals to solidify claims over customary land • Women and others found themselves excluded both decision-making processes and distribution of financial benefits over the use of land • Saying that “women are the real landholders” vs registration - trustees are mostly men • ‘No save tok’ • Witnesses are predominantly male; Western adversarial court processes compared to warfare • The right to speak = effective ownership From: Women, State Law and Land in Peri-Urban Settlements on Guadalcanal, Solomon Islands, Rebecca Monson, J4P Briefing Note, April 2010

6. In the past, women were consulted in land matters and their knowledge of genealogies was highly respected. Today, women often influence decisions regarding land through informal mechanisms such as conversations within the household. In the areas around Honiara there are also a small number of women leaders who are registered on land titles and have been parties to land disputes. However, it is also common for women to find out about a matter only after male leaders have reached a decision. If these decisions have been entrenched in signed agreements it may be difficult to challenge them, due to state legal norms and because many people are hesitant to challenge leaders in formal settings such as court hearings. From: Women, State Law and Land in Peri-Urban Settlements on Guadalcanal, Solomon Islands, Rebecca Monson, J4P Briefing Note, April 2010

7. Women often contribute to decisions ‘behind the scenes’, but the state legal system only records and recognizes those negotiations that occur inside public arenas such as land acquisition proceedings or court hearings. Many landowners, but particularly women, are unlikely to talk in these arenas because they lack the confidence, education, and customary authority to do so. From: Women, State Law and Land in Peri-Urban Settlements on Guadalcanal, Solomon Islands, Rebecca Monson, J4P Briefing Note, April 2010

8. Kenya: Illusion of Inclusion Laws in place to guarantee equality, but: • Local power dynamics prevent women from choosing where to address grievances • Cost of formal justice system, geographical access • Lack of legal awareness • Informal justice systems based on different concept of justice which may not comply with individual rights • Formal and informal systems also subject to power hierarchies • Confined community participation to ‘female issues’ even with government encouragement From The Illusion of Inclusion: Women’s Access to Rights in Northern Kenya, Benita Ayuko and Tanja Chopra, J4P Report, December 2008)

9. KNHRC- Inheritance Project • The inheritance project focused on the leaders and elders of the local Luo communities, in order to win their support in the promotion of the official inheritance laws. • The project facilitated a debate among Luo elders about the communities’ values in regard to women. • Facilitators challenged elders who held the belief that ‘Luo culture protects women’, by confronting them with cases in which women had been relegated to extreme poverty through denial of their right to inherit. From: Promoting Women’s Rights by Indigenous Means: An Innovative Project in Kenya, J4P Briefing Note, July 2007

10. J4P and Gender: Observations 1. Justice should focus on ensuring equality in development outcomes. Policy debates must shift away from pitting the formal justice system against informal ones.  Justice systems, whether formal, informal or hybrid are underpinned by unequal power dynamics, which if unaddressed ultimately deny equal enjoyment of rights and resources.

11. 2. Formal laws can be difficult to apply when they are not socially acknowledged, contextualized or received, and therefore have minimal impact on women’s lives.   The formal inclusion of women whether through international conventions, domestic legal reform and gender quotas is illusory, when no equal emphasis is given to fostering practical implementation of laws, and addressing pre-existing inequalities. Absent this interaction, formal laws, processes and institutions may not be reflective of women’s understanding of and demands for fairness and justice.

12. 3. Blanket models for justice systems, whether formal or informal, are not feasible.     Justice is not about ‘transplanting’ systems or engineering compatibility between formal and informal systems, but rather on forging arrangements or institutions that can effectively enforce rights and facilitate equality in development outcomes.

13. 4.    Empirical and detailed understanding of relations, processes and structures, whereby women achieve or are denied justice, including those that manipulate or ‘hijack’ customs, among others, is a critical component of justice reform.  

14. 5. Empowering women to demand justice, goes hand in hand with other policy actions for reforms of justice institutions.     Although women may possess awareness of their rights, it is not sufficient to make them take action to enforce these rights. Practical knowledge on access to legal institutions and social support and acceptance are important to accessing justice and claiming rights.

16. Directions and Selected Activities DIRECTIONS 1. Gender Mainstreaming 2. Global Dialogue 3. Regional Report -Regional report on women’s participation in benefit sharing processes (subthemes- land and local dispute resolution) SELECTED ACTIVITIES: 1. Knowledge Generation and Analytical Work -household surveys (e.g. Timor Leste) -document cases of inequalities (e.g. Solomon Islands) and ‘good struggles’ (e.g. Cambodia, Indonesia) -top ups (Timor Leste) -World Development Report 2012 and EAP Companion Piece to WDR 2010 2. Designing models/ frameworks -community and investor guidelines (e.g. Timor Leste) -hybrid institutions (e.g. Solomon Islands) -WLE (Indonesia) 3. National strategies and programming -access to justice (Indonesia)