It was quite distressing to read a story recently published in a Zambian newspaper, about a woman aged 30, who was brutally attacked. She was allegedly beaten by men supposedly carrying out the orders of the Chief in her village, who it is believed, presided over her case which she brought before the traditional court. She sustained a broken spine, serious swelling to parts of her body and is now bedridden. She can no longer go about her daily routine of working on her farm which provides an income for her and her elderly parents as well as other family members. Apparently this woman’s offence which resulted in the brutal beating that nearly killed her, was the fact that she contested the verdict by the traditional court.
This case highlights the problems that women in developing countries who are subject to plural legal systems (customary and English law) face. It is evident that plural legal systems mostly found in patriarchal societies hurt the rights of women who remain under represented in the judicial systems of many countries. Here is a woman trying to exercise the right to have her case heard only to end up with life threatening injuries.
Most women living in developing countries that were once British colonies, tend to be subject to plural legal systems which operate in an incoherent way. The patriarchal institutions in place particularly the traditional courts which heavily rely on customary law, continue to maintain the status quo with no indication that things are moving towards adapting to the needs of a 21st century world.
These courts where the Chiefs are at liberty to generate their own rules and procedures, are structured in a way that has led to abuse of
power by those in authority who often insist on induced compliance of the decisions they make. Subjugation of women is institutionalised in these courts that are now a legacy of a bygone era.
The thrust of the argument is not that customary justice should be relegated to the past. The need to preserve long standing traditions relevant to dispute resolution remains. There is however, a need for coherence and uniformity in the law to ensure that the legal remedies available in traditional courts are in compliance with state constitutional enactments.
A good number of traditional courts that exist where no women are present to provide a balance to the arguments presented, deny women equal opportunities before the law. There are no mechanisms in place to prevent the arbitrary use of power by the chief who presides over the case and also ensures that his pronouncements are enforced. The lack of gender balance does not inspire trust, credibility and confidence.
Dual legal systems found in many parts of the African continent are known to promote random application of legal remedies which can have long term effects in the stability of the judicial landscape. Traditional court systems which tend to operate in a semi-autonomous manner in a bid to preserve traditional ways of living in communities, need to be brought in line with constitutional requirements of their nations in order to serve the rights of women as well as other marginalised groups.