The Justice Sector Issues panel was moderated by Justice Sanj Monageng, a member of the Botswana IAWJ chapter. The panel featured five speakers, all who focused on a different issue relevant to the justice sector in their country.
Judge Elizabeth McMahon, United Kingdom, Enabling Tribunals
Judge Elizabeth McMahon is a Judge from an appeal tribunal in the social security and child support jurisdiction in the United Kingdom. She spoke on how her tribunal determined matters and the processes behind the scenes.
The key focus of her talk was on enabling people to participate in the tribunal process. She argues that 70 per cent of appeals in the tribunal are successful because the tribunal is enabling and helps the appellants engage and have a fair hearing. There are many ways this is achieved: for example everyone sits at one level at the hearing, excess formalities are avoided and simple language is used, the clerk meets them beforehand to explain what will occur, and friends and family are welcome to come to help ease anxiety. Moreover, the tribunal is flexible depending on the needs of the appellant. If an appellant had hearing difficulties, machines would be turned off to avoid noise. Thus daily ad hoc adjustments are very normal.
Since COVID-19, hearings have occurred online. Parties often like this as it is flexible around their own lives and means they can remain in familiar locations. The tribunal also makes sure parties who do not have equipment have access to tribunal equipment.
A final point made by Elizabeth is the importance of recruitment, training and appraisal. One of the criteria for judges recruited for this tribunal is an ability to communicate clearly and an awareness of diversity issues. When judges are selected, they are given communications training. Training is an ongoing process though, as well as competency testing to check judge’s ability to communicate with others.
Professor Magdalena Arczewska, Poland, Motherhood in Prison
Professor Magdalena Arczewska spoke on the research she conducted in 2019 on motherhood in prison. In countries such as Denmark or Norway, criminal sentences can be deferred for pregnant women. However, under Polish law pregnancy is not considered a special circumstance warranting different treatment in criminal law. However, women are entitled to special assistance during pregnancy and after childbirth. Accordingly, mother and child centres have been established in some prisons where mothers can stay with their children until they turn three.
Magdalena’s research involved interviewing inmates who gave birth in prison. The majority came from difficult families and suffered from addiction themselves. Most of the children born in prison were also not firstborns, but the other children were often in foster care. Therefore prison centres were often the first opportunity for mothers to experience maternity and, free from addiction, focus on being mothers. However, most of the women did not know what it meant to be a loving mother. They could only identify the physical needs of a child, not emotional or mental needs. Moreover, the women could not define what it meant to have a normal family or normal childhood. Even if the mother has problems, it is still important to avoid separation.
When these mothers leave prison, recidivism is common. Women thus need support when they leave prison. This cannot just be from time to time but needs to be a constant support with all her decisions. This is because she is returning to the place that led to her offending in the first place and she does not have the resources or skills to support herself. However, currently there is no coordinated support of this kind.
Judge Agnes Murgor, Kenya, on Outreach
Judge Murgor, an appeal judge in Kenya, spoke on judicial outreach as key to solving the challenges faced by courts when dealing with gender-based violence cases.
The prevalence of such cases have become highly problematic; in 2014, 14% of women and 6% of men aged 15 to 49 years reported having experienced sexual violence at least once. In April 2021, it was found that there had been over 5,000 cases reported to the gender violence helpline that year, an incredible increase from just over 1,000 the year before.
Further, only a handful of reported cases make it to court. Of those that do, few end in convictions as either victims are coerced to withdraw, or there is mishandling of the case that leads to acquittal. Victims are left stigmatised and unwilling to pursue cases. Sometimes parties also use “traditional” justice methods to circumvent the court process, despite such methods being illegal.
Courts have therefore been reaching out to communities to raise awareness, both of people’s rights and of the illegality of circumventing court processes. This has helped courts stay in touch with the communities they serve, which in turn enables communities to understand the court’s role and enhance their ownership of the justice process. They have also established court user committees made up of different stakeholders in the justice system, to ensure that courts operate in a way that expedites the process for everyone.
Ummey Sharaban Tahura, Bangladesh, on Legal Aid
Judge Tahura’s presentation focussed on the question whether a gender-neutral legal aid service ensured women’s equal access to justice in Bangladesh. In her view, the answer was no.
The constitution of Bangladesh uses gender-neutral language and promises equality before the law. The legal aid system in Bangladesh operates under the Legal Aid Services Act, which, based on the same approach, also uses gender-neutral language. This gender-neutral language, however, promotes indirect discrimination.
Apart from income requirements, legal aid is allocated on a first come, first served basis. So, those at a disadvantage in applying for legal aid are also at a disadvantage in receiving it. The criteria do not differentiate between the type of case, its nature and seriousness, or whether the applicant is a defendant or victim. In other words, there is formal but not substantive equality. The disadvantage women face can be seen by the fact that around three quarters of recipients of legal aid are male.
Judge Tahura suggested changing legal aid requirements to be gender-sensitive rather than gender-neutral, and prioritising need rather than order of application.
Judge Roselyn Nambuye, Kenya, on land rights in Kenya
Justice Nambuye spoke about women’s rights in land in Kenya. Prior to colonisation, land belonged to the community; there was no system of registration. When Kenya was colonised, land was taken away from the indigenous people, who became tenants on their own land. When the colonial government tried to reform land rights, however, it did not factor in the rights of women but instead continued the custom of entrusting women’s land interests to men.
Matters did not improve after independence; the constitution did not allow for women to assert their rights in land. Courts did try to use the Married Women’s Property Act 1882 to vindicate women’s land rights, although that could only occur on a minimal scale: women had to prove contribution.
The 2010 redraft of the Kenyan constitution has seen some improvements. Women can now assert their own rights. Women can own property. And when their husband dies, they can assert rights in the property previously owned by him. There is, however, still a long way to go. While some courts can be generous, others may not be, each adopting a different interpretation of what the law requires.
Reported by Rachel Buckman and Hannah Yang