Restorative and Flexible Customary Procedures and Their Gendered Impact: A Preliminary View on Namibia's Formalization of Traditional Courts

Peters, E.A., Ubink, J.M. (published online 22/01/2015). Restorative and flexible customary procedures and their gendered impact: a preliminary view on Namibia's formalization of Traditional Courts. Journal of Legal Pluralism

39 Pages Posted: 9 Nov 2014 Last revised: 14 Nov 2015

See all articles by Eline Peters

Eline Peters

University of Amsterdam - Graduate School of Social Sciences

Janine Ubink

University of California, Irvine - Law School; Leiden University - Law School

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Date Written: November 6, 2014

Abstract

From 2011, Namibia has begun implementing its Community Courts Act of 2003, which formally recognizes Namibia’s Traditional Courts and creates linkages between the customary and the state legal system. The Act envisages several procedural changes in the operation of Traditional Courts and this article evaluates whether these changes are likely to empower women to make more effective use of the customary justice system. The article describes and analyses customary procedures in Traditional Courts in the Kunene, Caprivi and Oshana regions of Namibia. It specifically focuses on three prominent characteristics of customary justice systems: their restorative nature, their flexibility and their gendered impact. The article finds that several procedural aspects form barriers to women's access and participation in Traditional Courts. These aspects include unclear planning and time-consuming procedures, the lack of female councilors, and cultural barriers for women to report cases. The article furthermore shows that customary justice systems’ negotiable and flexible character also forms a likely barrier for women as they often do not have the same knowledge and bargaining power in Traditional Courts as their male counterparts. The article concludes that while the Community Courts Act is likely to impact positively on the administration of justice by the Traditional Courts through the allocation of stronger powers to serve processes, summon witnesses, and enforce decisions, the Act does not address the procedural issues identified as detrimental to women's customary legal empowerment.

Keywords: Customary law, legal empowerment, Namibia, gender, Community Courts Act, legal pluralism

Suggested Citation

Peters, Eline and Ubink, Janine, Restorative and Flexible Customary Procedures and Their Gendered Impact: A Preliminary View on Namibia's Formalization of Traditional Courts (November 6, 2014). Peters, E.A., Ubink, J.M. (published online 22/01/2015). Restorative and flexible customary procedures and their gendered impact: a preliminary view on Namibia's formalization of Traditional Courts. Journal of Legal Pluralism, Available at SSRN: https://ssrn.com/abstract=2520158 or http://dx.doi.org/10.2139/ssrn.2520158

Eline Peters

University of Amsterdam - Graduate School of Social Sciences ( email )

Spui 21
Amsterdam, 1018 WB
Netherlands

Janine Ubink (Contact Author)

University of California, Irvine - Law School ( email )

Irvine, CA
United States
9498244807 (Phone)

Leiden University - Law School ( email )

Steenschuur 25, 2311 ES
PO Box 9520, 2300 RA
Leiden
Netherlands
0031-71-5277262 (Phone)
0031-71-5277670 (Fax)

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