International and national laws broadly recognise equal rights for all. These include the right to fair and equitable access to justice.
But justice for women and girls before the courts remains elusive in many African countries. This is partly because they face unique hurdles that disadvantage them from start. These include the fact that court hearings are lengthy and legal services extremely expensive. Hearings can last decades. The use of English and French can be intimidating and alienating given the high levels of illiteracy among girls and women.
Not all the disadvantages are necessarily unique to women and girls. But the structural conditions and cultural inequalities are loaded against them in most African societies. Court proceedings are rarely sensitive to the deep-seated social inequalities tilted against women and girls. These include gender, ethnicity, class, culture, language, and location.
This can be seen in the case of sexual abuse cases in particular. Courts often impose very high thresholds for evidence. For example, litigants are asked to produce official documents such as medical forms, land or property titles to support or justify their claims. Yet often women and girls can’t get these documents because of cultural practices that make owning property such as land and housing nearly impossible for them.
Women also often can’t act as surety or apply for bail for their loved ones because they don’t have a passport, national identification or proof of address.
There are other hurdles that victims of sexual abuse have to overcome. These include the fact that they are required to provide primary evidence of the abuse backed by a police doctor’s medical report. In reality, many victims are unable to report the abuse in good time. Police doctors are also inaccessible to the majority of victims and come with some hidden cost.
And once in court, they are subjected to painful, degrading and humiliating processes of cross examination and re-victimisation due to a lack of protection.
Judicial decisions should move beyond a narrow and exclusive focus on the cases before the courts. This entails focusing on social, economic and cultural rights of women and girls.
Some lessons learnt
There are ways in which judicial processes could go beyond an exclusive focus on punishment. A landmark high court ruling in Uganda which recently won international recognition is a case in point. While the judge provided specific remedy to a couple that had their newborn stolen in hospital, it also upheld the state’s obligations under the right to health in ways that increases access to disadvantaged women.
Justice Lydia Mugambe’s ruling could go a long way in securing better health rights for women and girls in Uganda. It also points the way to transforming systems and structures of injustices and inequalities that shapes women and girls’ vulnerabilities in the first place.
The case also highlights the importance of civil society organisations acting as intermediaries between the court and victim. These organisations can provide relevant information and ensure proper procedures in handling cases.
Another area that could be improved is improving the court experience for women and girls. The process is as important as the outcome. How victims are treated through a court process can empower or disempower them. There should be accompanying efforts to engage and empower victims as citizens with full rights. This is particularly important where experience of violations strip women and girls of their dignity and sense of self-worth.
If not, court decisions could further entrench women and girls’ vulnerabilities, especially when required evidential proofs are erroneous. A case in point is the Kenya court ruling on sexual abuse which earned the dubious distinction of the worst judicial ruling against women in 2016.
The Kenyan court acquitted a 23-year-old man of the crime of child defilement of a 14-year-old girl. The ruling assumed consensual sex occurred and a possible false claim by the girl due to delayed reporting. The court didn’t accord the girl special measures provided to children. Yet in reality, the girl was a minor incapable of making informed consent without special protection.
What can be done?
Women and girls experience of accessing justice in Africa is shaped by their socio-cultural context of lower social status. It’s important that courts are responsive to these prevailing gender and generational inequalities and injustices that disadvantage women and girls.
It calls for investment in processes that create and ensure inclusive, safe, participatory spaces and dignity for victims who come before courts. This could include designing victim and witness participation and protection protocols for court use.
Clear court rules of procedures are required to guarantee confidentiality, safety, and dignity for victims of highly stigmatising cases, such as sexual abuse.
And courts should aim to adopt more flexible standards of evidence. They should also ensure proceedings are conducted in local languages and responsive to local realities – such as local taboos on sexual abuse.
Lastly, the majority of women and girls in Africa live in contexts of deeply rooted systems of socio-cultural injustices and structural inequalities. Given this, court procedures and decisions shouldn’t only enable justice. They should also change situations that exacerbate women and girls’ vulnerabilities for a just and equal society.