Restorative and flexible customary procedures and their gendered impact: a preliminary view on Namibia's formalization of Traditional Courts

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 analyzes 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.