Thursday, March 27, 2008

Improving Women’s access to Justice-

Improving Women’s access to Justice-

Relevance of Alternative Dispute Resolution

Daily Graphic, Thursday, March 27, 2008. Page 11 (Women’s World)

Salome Donkor

The issue of three ‘royal’ widows of Mo who have undergone widowhood rites for more than nine years as a result of a feud between three gates of the Mo Stool, which has been pending before the Brong Ahafo Regional House of Chiefs for nine years, continues to draw condemnation from human rights advocates. The widowhood rites would end only when a new chief is installed to perform the final funeral rites of the late chief, Nana Kwaku Dimpo.

The Member of Parliament (MP) for Kintampo North, Mr Stephen Kunsu, reportedly described the practice being perpetrated in the name of culture, as inhuman and said it had brought to the fore the need for negative aspects of the country’s culture to be discarded.

Despite constitutional provisions that guarantee the rights of men, women and children, a number of women continue to be falsely accused and incarcerated in “witches’ camps” or “prayer camps” where they are held to “deliver” them of evil spirits.

These seem to give credence to the assertion that women as daughters, mothers and wives face several challenges in their efforts to access justice in both rural and urban areas due to a number of factors such as illiteracy and poverty.

The Women in Law and Development in Africa (WiLDAF) Ghana maintains that whether they come from a matrilineal or a patrimonial family background, women go through daunting challenges within the country’s existing legal systems to get justice.

This, the organisation says, is in relation to matters concerning domestic violence, property acquired with a partner or entitlement due to inheritance, access and control to land or relating to a third party seeking maintenance, custody or paternity of a child. Within the government’s development agenda and various international agreements, one critical factor that requires consideration is women’s access to justice.

According to WiLDAF, under the country’s plural legal system where both customary and statutory laws work side by side to offer flexibility and individual choice, the ordinary woman is confused because she is often unsure which system of justice she should pursue. For a woman in the rural area, her best option is to use the customary legal system, which in most cases is “patently patriarchal and often not in her favour”. Should she choose the state legal system, she is confronted with challenges of physical access to a court of law and low economic power to hire the services of a legal practitioner.

Access to justice has many components and WiLDAF talks about three. The first is access to government or civil society sponsored legal aid services, which include access to information about legal rights and responsibilities, legal counselling, advice and representation, physical access to structures and mechanisms and the application of constitutional provisions on human rights and legislation to ensure justice for all manner of persons, irrespective of their social, political, economic or cultural standing.

To deliberate on the challenges associated with women’s access to justice, WiLDAF Ghana, in conjunction with the Commission on Human Rights and Administrative Justice (CHRAJ) and the Federation of Women Lawyers (FIDA) organised a dialogue in Accra to focus on the special case of women and their access to justice. Similar dialogues will be organised in Kumasi and Takoradi.

Linked to these discussions, the dialogues will also focus on how women’s access to justice affects their participation in the country’s development process, and focus on women as a special group because of the challenges that confront them in their daily quest for justice in one conflict or the other.

To critically examine a number of important concerns within the country’s legal system, presentations by the panellists at the forum in Accra touched on topics including women seeking State Legal Aid Services: Successes and challenges; the role of Muslim and Christian religions in women’s access to justice; promoting Alternative Dispute Resolution in Ghana - Implications for women’s access to justice and the “Police Service Ensuring Women have Access to Justice, Gains and Challenges”.

Deliberating on the topics, the issue of settling disputes amicably at the community level with the involvement of Female Traditional Leaders (FTL) to safeguard the interest of women, cropped up and that also led to the essence of setting up Community Mediation Centres (CMCs) in parts of the country.

A write-up on CMCs states that they provide a platform where individuals or groups in dispute could resolve the dispute with the assistance of a trained third party neutral, referred as the Mediator.

The CMC is the initiative of the Legal Aid Scheme, with support from the United Nations Development Programme (UNDP). The centres handle civil cases such as tenancy issues, employment disputes, family conflicts, maintenance and custody of children and such minor criminal cases that are permitted under the law such as assaults, acts tending to disturb peace, neglect of dependants and cases referred by the police, the courts and other social service providers.

The objective of the CMCs is to offer an alternative to adversarial, cumbersome and expensive means of conflict resolution to improve access to justice for all people within the community and to create awareness about mediation centres as a preferred alternative to the centres.
All these are geared towards promoting peaceful co-existence among members of the community, facilitating communication between those engaged in dispute and providing dispute resolution centres in the communities in order to offer the platform for those engaged in dispute to create their own solutions to their differences.

Dwelling more on promoting Alternative Dispute Resolution in Ghana and its implications for women’s access to justice, a Senior Lecturer at the Faculty of Law, University of Ghana, Legon, Dr Kwadwo Arua-Appiagyei, said both the normal legal system and the traditional system of justice have not helped much in the promotion of women’s access to justice.

He explained that the problem with the traditional system of justice is that it operates in a society that is patriarchy controlled while the normal legal system is slow and complex and discourages women, especially those in the rural areas, from seeking justice under the system.

He said the next alternative is to widen the scope of Alternative Dispute Resolution and give gender training to the adjudicators to make them effective in promoting women’s access to justice.

The participants, however, cautioned that criminal cases, such as rape, defilement and incest are not to be dealt with under the traditional dispute resolution system but by the law courts.
The non-governmental organisations should help in training traditional leaders to appreciate the need not to mediate in such cases. They also called for the empowerment of women financially to address concerns that are raised by some family members in relation to the upkeep of children when a spouse is convicted for a criminal offence.They also called for an end to trial by ordeal under the traditional mediation scheme since it infringes on the fundamental human rights of victims.

The Ameer of the Ahmadiyya Mission, Maulvi A. Wahab Adam, shared his thoughts on Islam’s attitude towards women’s rights and the role of the Muslim religion in women’s access to justice in an address read on his behalf by Amtush Shakoor Karim, a lecturer at the University of Ghana. He said certain precepts and practices of present day Muslims cannot be said to represent the letter and spirit of the Shariah.

He made reference to Safiah, who was accused of adultery by a Shariah Court in Nigeria, which claimed that in Islam, punishment for adultery is death by stoning.
He said although he made a demand on all Muslim scholars and jurists in Ghana and across the world to cite one single verse of the Holy Qur’an to support their contention, since 2002, not a single verse had been cited from the Holy Qur’an to substantiate that claim until today and questioned the basis upon which Safiah was sentenced to death by stoning in the name of Islam.
He maintained that if the claim was true then justice demanded that the man who impregnated Safiah should also be stoned to death, but ironically, there was complete silence on that aspect of the prescribed punishment.

He stressed that severe sanctions, including suspension from the community, and where necessary, ex-communication await intransigent men and women.

In her presentation, the Queen of Juansa, Nana Afrakoma Boatemma, who touched on some challenges facing women who seek redress to disputes under the customary law, said in family related cases, the customary process for the resolution of such disputes are mediation and arbitration.

She said considering the cost of accessing the courts, especially for women, most of whom are poor and not well educated, there is the need to strengthen the ability of traditional authorities and sharpen their skills in dispute settlement to enable them mediate effectively in such matters, and generate their interest in such cases as well as to make their views heard.

In her presentation, Chief Superintendent (Mrs) Jessie Borquaye, Accra Regional Co-ordinator of the Domestic Violence and Victims Support Unit (DOVVSU) of the Ghana Police Service said the unit seeks, through its outreach programmes, to prevent crimes against women by educating them on their rights, what constitutes domestic violence, how to identify potential perpetrators and where to locate DOVVSU .

She said one major challenge facing the unit is that some women who report cases at against their husbands turn round to beg for their release and this happens when especially, family or church elders meet and the women are compensated and also advised to forgive the men for the sake of their children.

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