The role of informal justice systems in delivering justice to GBV survivors

Some judges are perceived to have taken bribes to accept cases, or rule a certain way:

“People are poor...if I have a case today and I have money, maybe I’m on the wrong side, I pay 1000 dollars, or 500 dollars to a judge. He will take it because he is paid less than 100 dollars salary; maybe they are paid like 20 dollars, that’s their salary. They take that...so the independence of the judiciary is in question in South Sudan.”

– Key informant in South Sudan

Judges in South Sudan have also had their lives threatened and suffered intimidation when refusing to drop certain cases. One key informant shared the story of her own sister, who had been experiencing IPV and living separately from her husband. Her husband came to the home in a military car and took the children away. When the case was working its way through court, the judge had his life threatened because the husband had connections to one of South Sudan’s most powerful military generals. Ultimately, the case was transferred to another judge, and the informant’s sister is still living without her children.

In Afghanistan, prior to the 2021 Taliban takeover, the police and the judiciary were also affected by corruption. Criminal networks infiltrated Afghanistan and worked with political elites to profit off the illicit drug economy. Both police and judiciary members are perceived as having demanded bribes, deferred arrest, and otherwise influenced legal proceedings. A key informant detailed the challenges facing justice actors: “The precautionary actions and measures are not sufficient. When the judges and prosecutors are going to provinces for their duty especially in Panjshir, Kapisa, Parwan, Khost and Wardak [provinces] they face many security threats. As they don’t have any personal transport, they are going in public transport which is risky for them. Many judges are also threatened and blackmailed.”

- Key Informant in the Afghan Government

Customary and informal justice systems (CIJS) deal with many of the most common justice problems that women face such as family matters, land related disputes and debt disputes, as well as GBV. Therefore, it is important to engage and improve not only formal justice systems but also CIJS, in their various forms. This requires understanding the challenges that are presented by CIJS, which are multifold: CIJS tend to prioritize community cohesion or reconciliation, rather than women’s rights. A CIJS builds its legitimacy and authority from culture and tradition, which often may reflect social norms that may not be gender equal. In fact, some forms of violence (particularly harmful practices such as so-called honour killings, sorcery related violence, female genital mutilation, and others) are sometimes justified on the basis of culture. Proceedings adopted by CIJS may also violate women’s rights, such as not treating women or their testimony on

an equal footing with men, having public hearings in GBV cases and limiting the participation or representation of women in the proceedings.301

Moreover, disadvantages faced by women while accessing justice are further compounded by intersecting marginalization such as poverty, ethnic status, disabilities, gender or sexual identities.

Informal justice systems coexist with formal justice systems in South Sudan, PNG and Afghanistan, and informal justice is also recognized in the Philippines.

“Traditional court is always negative for women.”

– Key informant from a CSO in South Sudan

In South Sudan customary law is the most common form of conflict resolution, even though the customary system is not meant to address GBV. The Local Government Act, 2009,302 prevents the customary system from adjudicating criminal cases, and violence is considered criminal.

Furthermore, the customary system technically answers to the formal justice system, with customary decisions able to be appealed to the statutory courts. However, in practice, informants report that few seem to realize this is the case and there is little coordination between the two systems. The customary system tends to marginalize the needs of GBV survivors, and many survivors do not feel satisfied by the customary process. The latter is patriarchal, and in some ways influenced by sharia law, a vestige of South Sudan’s relationship to Sudan. Under this traditional system, local chiefs, or Boma chiefs, lead the courts. These chiefs can reflect harmful patriarchal attitudes present in South Sudanese society:

“It is common in our custom to beat a woman when she has made a mistake – not to the extent of killing her completely, but to discipline her.” (Male chief in Rumbek)303

Women and girls who are raped may be forced to marry their perpetrator. Women seeking justice or protection from IPV may be forced to return to the husband or family, and women seeking divorce are expected to pay back their bride price, which is often economically infeasible. Women may also lose access to their children if they pursue divorce.304

In PNG, GBV survivors access justice within a mixed legal system that recognizes formal and customary laws, as stipulated in the Constitution and Underlying Law Act, 2000. Although the Family Protection Act clarifies the roles of actors within the dual justice system [e.g., village court magistrates are authorized to provide interim protection orders (IPOs) to women experiencing domestic violence and to refer breaches to the district court], actors within customary systems do not always have a clear understanding of their mandate under the law:

“A lot of the new laws, I learnt from the radio, some of them are the sorcery act, family act, cyber law, polygamy law. I have not got direct training.”

– Village court magistrate in PNG 305

Lack of training becomes a serious issue when village court magistrates start mediating criminal cases involving physical and sexual violence. For example, key informants noted that when the Sorcery Act was repealed in 2013, the provisions in the Village Court Act that allow village courts to address sorcery concerns were not removed. Village court magistrates are only meant to address accusations of sorcery, and not SARV. However, because the belief in sorcery is so prevalent, many local leaders, church communities, and village court officials address cases of extreme violence and killing. This can lead to negative outcomes for the accused:

“The overwhelming thing that survivors want is just for people to stop thinking they are a sorcerer and to be able to go back and live a normal life in their community.”

– Key informant in PNG

Survivors of SARV often must move away from their original community, and it can take decades before they can return. This is where the role of community leaders and village courts is crucial: to ensure that those accused of sorcery are not further stigmatized or victimized, and don’t have to relocate (in some instances to a different province). In recent years, with the spread of social media and technology, sorcery accusations follow people even when they relocate, which enables the risk of violence to continue.

In Afghanistan, most domestic violence cases are resolved within families by relatives through jirgas, or customary gathers of elders informally empowered to take decisions for families or individuals, often around resolution of disputes or community issues. Once a survivor decides to present a complaint, elders and male family members of both the wife and husband form a jirga; a decision is made by a mediator and both the wife and husband must respect it. In such cases, the family jirga will usually convince both husband and wife to reconcile, and advise the woman to endure any violence. The jirga does not typically respect the confidentiality of cases.

“One challenge that women face is that their families and society will not allow them to seek formal justice. And in jirgas they are forcing women to forgive the perpetrator and not to refer her case to the justice sector. The decisions (of jirgas) that are based on customary laws will take them back to violence.”

- Key informant in the Government of Afghanistan

“The challenges and problems at justice sectors causes families to go for customary law, as it is less time consuming. But the problem with customary law is that it is biased towards men rather than women. Most of the times, women are not involved, and decisions are taken without their presence.”

– Key informant from a CSO in Afghanistan

The Philippines is home to tens of millions of indigenous peoples, and their right to self-governance is guaranteed by the Indigenous Peoples Rights Act. Various indigenous cultural communities treat GBV cases differently (in terms of defining what constitutes GBV and the penalties that attach to their commission, if any), and may address GBV in a way that differs from state law. Often, as in other settings, preservation of the family and community is prioritized in customary justice. One key informant shared particular challenges of customary justice in an indigenous community: “A challenge is the legal system of the Moro, particularly the unwritten practices of the Moro people. They have an umpungan (“counsellor”). When the woman goes to the counsellor, she is usually told that she needs to go back to her husband. It is an area for legal pluralism because interpretation is left to the discretion of the umpungan, depending on how they interpret the practices. Thus, there is a need for different approaches for Moro and IPs.”

- Key informant from a government body in the Philippines