Human Rights Based Approaches to Development: Justice and Legal Fiction in Africa

Abstract

Human rights based approaches (HRBA) to development by scholars and practitioners alike have led to the expansion of laws protecting women’s rights in Africa, particularly in the realm of family law. The paradox is that the increase in laws has not resulted in greater equality and justice for women. To be sure, the implementation of new laws will inevitably take time. There are two important consequences of HRBA in Africa: 1) a growing gap between law-in-the-books and law-in-practice and 2) a backlash, in some cases, against woman-friendly family laws. This paper explores challenges to access to justice for women in various African countries. It considers the context of legal hybridity in Africa and how this influences women’s access to rights. It examines pathways to the protection of women’s rights, including the Protocol to the African Charter for Human and People’s Rights on the Rights of Women in Africa and programs that promote the training of paralegals as a method of increasing access to justice. The paper argues that “African” mechanisms such as the Protocol and paralegals are important elements to women achieving sustainable access to rights. Paralegals are an integral part of the justice chain. Their familiarity with community norms, as well as legal awareness, makes them crucial to bridging the gap between the law-in-the-books and law-in-practice. As legal reforms take place across Africa, paralegals, properly trained in the new laws, may offer the best opportunity for helping individuals access justice in ways that do not alienate them from their communities.