The law is an
essential tool for advancing women’s rights and gender equality. When a society
is governed by the rule of law, with an accessible and just legal system, women
can thrive, contribute to the system and improve it for future generations.The
rule of law requires that laws are free from bias and discrimination“equally
enforced and independently adjudicated, and consistent with international human
rights norms and standards”. As such, a robust and effective legal system based
on the rule of law is central to assisting women to become equal partners in
decision-making and development. Just as a strong legal system can protect and
open up opportunities for women, a justice system that is inaccessible or that
contains discriminatory rules or practices can significantly impede the
advancement of women’s rights. The United Nations Development Programme (UNDP) has
highlighted the danger of women being left vulnerable to becoming victims of
criminal acts, such as fraud, theft, sexual or economic exploitation, violence,
torture or murder, if they are not empowered to benefit from the full
protection of the law. The global study conducted by the Commission on Legal Empowerment
of the Poor (CLEP) also concluded that groups that experience discrimination
and exclusion from the protection of the rule of law are more likely to fall
victim to a range of socio, economic, political and criminal injustices. Over
the last couple of decades, the international community has invested
substantially in programs aimed at strengthening the rule of law in developing
countries. Yet despite this investment, the rule of law continues to mean very
little for the vast majority of women and girls. Many women are simply unable
to access and navigate their way through formal legal institutions. This can be
due to structural as well as cultural barriers, including women’s inadequate knowledge
of rights and remedies, illiteracy or poor literacy, and lack of resources and
time to participate in justice processes, especially given the heavy burden of
labor that women bear for their families. These challenges are even greater for
women who are subject to multiple forms of discrimination based on factors such
as being part of indigenous or ethnic minority communities, religious
minorities or sexual minorities, or for disabled women, migrant workers, and
women living with HIV/AIDS.When women do manage to access the justice sector,
they often receive outcomes that are not in line with international standards.13
For example, out of the 112 countries scored in the 2012 Organization for
Economic Cooperation and Development (OECD) Social Institutions and Gender
Index, 86 were found to have discriminatory laws or practices in relation to
property and inheritance.The study showed that on average, women hold only 15 percent
of land titles in countries where data is available.In family law, women continue
to have difficulty receiving fair treatment in the areas of marriage, divorce
and child custody. In addition, many justice systems do not treat gender-based
violence as a criminal offence, or they consider it to be a family matter for
which a fine against the offender will suffice. Either by choice or through
necessity, many women, and especially those living in rural environments,seek justice
through informal systems. Such informal or ‘customary’ justice systems often
exist alongside formal systems of law. While not gender specific, research suggests
that in developing countries, up to 80% of the cases are resolved by informal
justice systems, signifying that most women in the developing world access
justice in a plural legal environment. Evidence indicates that in a globalized
world, legal pluralism is not disappearing but, in fact, is becoming more
entrenched and complex.In plural legal settings the formal justice system “is
simply one possible avenuein the reality of multiple legal orders”.
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