Abstract
The Constitution of Kenya guarantees the promotion of customary justice systems. However, in many cases, the dictates of customary law are often in contravention with the progressive attitude embodied in the Constitution. The Constitution guarantees the right to equal treatment of men and women in social, political and cultural spheres. However, women in the Somali customary justice system do not enjoy this right. Women in the Somali customary justice system have no locus standi before any dispute resolution process and they cannot oversee the resolution of disputes as this position is reserved for the elders, who can only be men. Through Gary Becker’s theory on the economics of discrimination, this paper establishes, through an economic lens, that there is a prevailing cost to the Somali community for failing to include women in the processes of the customary justice system. It suggests a way forward of promoting inclusivity in line with the characteristics of customary law.
Highlights
Women in the Somali customary justice system do not enjoy this right.Women in the Somali customary justice system have no locus standi before any dispute resolution process and they cannot oversee the resolution of disputes as this position is reserved for the elders, who can only be men.Through Gary Becker’s theory on the economics of discrimination, this paper establishes, through an economic lens, that there is a prevailing cost to the Somali community for failing to include women in the processes of the customary justice system
The Somali customary justice system is guided by the Xeer, the Somali customary law.[1]
Part III introduces the key theory underpinning the paper: Gary Becker’s theory on the economics of discrimination. The paper applies this theory to the place of women in the Somali customary justice system and explores the prevailing cost by taking as case study, the Wajir Peace Group, which was made up of women who successfully sought to bring about peace after periods of incessant conflict among Somali clans in Wajir
Summary
The Somali customary justice system is guided by the Xeer, the Somali customary law.[1]. Part III introduces the key theory underpinning the paper: Gary Becker’s theory on the economics of discrimination The paper applies this theory to the place of women in the Somali customary justice system and explores the prevailing cost by taking as case study, the Wajir Peace Group, which was made up of women who successfully sought to bring about peace after periods of incessant conflict among Somali clans in Wajir. This Part concludes by analysing the resulting limitation of the application of Becker’s theory and the socio-cultural realities surrounding the. Part V provides the conclusion and recommendations to promote the inclusion of women in the dispute-resolution process
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