Juxtaposing emerging community laws and international human rights jurisprudence on the protection of women and girls from harmful practices in Malawi

 Tinyade Kachika
 PhD (CapeTown)
 Consultant, Gender and Social Inclusion, Lilongwe, Malawi
 http://orcid.org/0009-0003-0092-1969
 This email address is being protected from spambots. You need JavaScript enabled to view it.

 Edition: AHRLJ Volume 23 No 1 2023
 Pages: 126 - 155
 Citation: T Kachika ‘Juxtaposing emerging community laws and international human rights jurisprudence on the protection of women and girls from harmful practices in Malawi’ (2023) 23 African Human Rights Law Journal 126-155
http://dx.doi.org/10.17159/1996-2096/2023/v23n1a6
Download article in PDF

Summary

In recent years, community laws to address harmful practices affecting women and girls in rural Malawi have been forming under the leadership of traditional authorities (chiefs), plural justice system actors who usually are suspected by international human rights law and jurisprudence of being on the side of women’s rights violations. Yet, being community engineered, the community laws have some potential to practically protect women and girls from harmful practices. Taking off from a ‘norm internalisation’ conceptual footing, this article closely examines how the phenomenon of community laws sits with the expectations of international human rights law and jurisprudence on measures that states ought to take to internalise norms protecting women and girls from harmful practices. The article establishes that international human rights law and jurisprudence is saturated with calls for states to prioritise formal and macro-level measures to address harmful practices, although latest jurisprudence at both United Nations and African Union levels has cautiously begun to also recognise the role of plural justice systems. The article argues that it is high time that the human rights treaty-monitoring bodies started to critically re-examine the high insistence on formal measures, given that the community laws, which are also internalising the norm protecting women from harmful practices, are manifesting at the level of chiefs’ jurisdictions.

Key words: harmful practices; community laws; norm internalisation; CEDAW/CRC General Recommendations/General Comments; African Commission/African Children’s Committee General Comments

1 Introduction

Recent scholarship1 documents that in some parts of Malawi, chiefs are leading efforts to informally adopt community laws towards addressing harmful practices that mostly affect women and girls in their communities. These community laws address socio-cultural challenges and harmful practices, such as child marriage; incest; impregnation of schoolgirls (by teachers, schoolboys and other men); school-related gender-based violence; harmful puberty rituals for girls; harmful initiation rituals and practices; harmful widowhood rituals and practices; property dispossession of widows; harmful pregnancy-related practices; wife swapping; and domestic violence, among others. These practices, which are mere examples of harmful practices towards women and girls obtaining in various societies, fall within the purview of the definition of harmful practices under the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (African Women’s Protocol),2 namely, ‘harmful practices are all behaviour, attitudes and/or practices which negatively affect the fundamental rights of women and girls, such as their right to life, health, dignity, education and physical integrity’.3

Legal formalists may be apprehensive of the community law phenomenon, and questions may justifiably arise regarding the legal force of these community laws in light of domestic legal frameworks. This would be a valid concern, and while the subsequent analysis alludes to the need to consider the community laws within a legal pluralism context, this is an issue for another article. For now, the focus is to use Malawi as a mere example to demonstrate that chief-led community laws on harmful practices are emerging in earnest in some societies, and to interrogate how these community laws are positioned within United Nations (UN) and African Union (AU) human rights jurisprudence, which prescribes ways in which states should internalise norms protecting women and girls from harmful practices. This inquiry is important given that scholarship has established that the community laws that were studied in Malawi have inner force and tangible normative effects since they are closer to rural people than statutory law.4 As such, one could argue, well-considered community laws have high potential to be a norm-internalisation conduit for tackling entrenched harmful practices at very local levels.

However, to what extent does international and regional human rights jurisprudence recognise that community laws and chiefs could be viable entry points for norm internalisation when it comes to protecting women and girls from harmful practices? This is the question being explored in this article. Drawing on the conceptual framework of norm internalisation, the article begins by briefly explaining how chiefs and their subjects are making these community laws in rural Malawi. It then provides a conceptual analysis of norm internalisation and how it is positioning community laws. Thereafter, legal sources of norms protecting women and girls from harmful practices are examined, followed by an analysis of international human rights jurisprudence that require states to take specific measures to internalise human rights norms. Next, the article examines how the community laws to address harmful practices in rural Malawi are located within the international human rights jurisprudence before concluding. Notably, the article does not involve conceptualising ‘harmful practices’, but concentrates on the global acceptability of community laws that address such practices.

2 Community laws: Description and role of chiefs

In Malawi, the hierarchical tiers of traditional leaders are paramount chief, senior chief, chief and sub-chief.5 The ‘chiefs’ and ‘sub-chiefs’ are commonly known as traditional authorities and sub-traditional authorities respectively. Under these two groups are group village headpersons and village headpersons. A study conducted in Malawi6 revealed that these community laws address contextual harmful practices prevalent in a chief’s territory. These chief-led7 community laws, which can be written or oral, are jointly agreed upon by chiefs and their communities to govern the behaviour of all community members in order to address specified harmful practices. Violations of the community laws attract various village fines such as chickens, goats or monetary equivalents that are also agreed upon at community level.8

Community laws, loosely dubbed ‘community bylaws’ in Malawi, can be made in any sector, but this article focuses on community laws in the gender sector. The community laws are usually made at the level of traditional authority (TA). While the TA champions the whole process, group village headpersons and village headpersons are usually active in the consultative formulation of the community laws through facilitating consultations with their subjects; and attending forums where proposals from the subjects are further debated to see what should be refined, rejected or adopted. Then, the community laws are usually adopted through a public launch within the community.9

This article will not dwell on how the community laws are conceptualised,10 but suffice to say that the community laws are introducing an alternative mechanism, albeit informal, of addressing entrenched negative customs and practices, and it is intriguing that chiefs are leading this revolution. This role of chiefs defies literature, which usually situates chiefs and women’s rights on binary opposing sides. Often, traditional leaders are viewed as the ‘problematic other’ on the women’s rights question.11 Of course, some scholars have acknowledged the relevance of traditional leaders to the implementation of women’s rights. For example, Becker contends that traditional authorities are not at all stuck in old tradition, but are a changing and modern institution that, together with rural people, produces local modernities as the institution interacts with global social forces.12 Bennett also acknowledges instances when chiefs’ courts in Zambia modified customary law in order to improve women’s status, only to have such decisions overturned by subordinate courts on the ground that the chiefs were negating customary law.13 Sieder and McNeish identify traditional and community structures for dispute resolution as potential means of making quick gains in justice projects. 14

With these few exceptions, literature, including some feminist scholarship, presents traditional leaders as being antagonistic to women’s rights. This suspicion of traditional leaders is not exactly unfounded. For example, Bond observes that ‘traditional leaders may be hostile to equality based cultural change’.15 Williams argues that customary law systems (of which traditional leaders are custodians) ‘legitimise and enforce’ gender discrimination and threaten women’s status, including in areas of marriage, divorce and property.16 Doho asserts that in the Zimbabwean context, traditional leadership systems were, and indeed continue to be, partly responsible for ‘women’s pathetic conditions’, 17 arguing, among other things, that the traditions that traditional leaders have condoned have been without women’s consent.18 Ewelukwa observes that Nigerian local rulers often resist efforts to reform customary practices that disadvantage women, and they suppress women’s voices by undermining democratic processes at village levels.19 Much of this literature is tainted by the tendency to overgeneralise which, in turn, invisibilises positive chief-led initiatives such as the community laws presented in this article. Furthermore, while some of the literature accepts the potential of traditional leaders as agents of positive change, it assumes without more ado that such change only happens under the influence of the state, and sometimes non-governmental organisations (NGOs).20

It should be noted that this article has deliberately opted for the term ‘community laws’, and avoided using the locally popular term of ‘community bylaws’, given that in Malawi ‘bylaws’ can only be legally made by a district, town of city assembly,21 or at area/traditional authority level to respond to contextual matters, so long as legal procedures are followed.22 Nevertheless, the so-called ‘community bylaws’ (or ‘community laws’ as labelled in this article) also cannot be sweepingly discarded due to their informality. Although they are not a recognisable norm internalisation method under formal law, they could still be considered law within the scope of living law and legal pluralism (and, therefore, capable of internalising human rights norms). Claassens defines living law as ‘blended law and experiences (ie from vernacular, constitutional or statutory sources)’,23 and Hellum labels living law as ‘the outcome of the interplay between international law, state law, and local norms that takes place through human interaction in different historical, social and legal contexts’.24 This means that even if they may not have the status of formal law or customary law, the community laws/’bylaws’ have legal status as living law in the context pluralistic legal system.

Of course, scholars such as Tamanaha hesitate to give the label of ‘law’ to ‘negotiated orders’ under the guise of ‘living law’ because the term ‘living law’ betrays analytical clarity and drags ‘non-law’ materials into the law field.25 However, this article agrees with Claassens’s argument, that the rejection of living law as law, on whatever basis, carries with it the implication that people-made law cannot be law as such. Such rejection implies that, to qualify as law, a practice must be made by authorised ‘experts’, such as lawyers, judges, governments and traditional leaders.26 Yet, legal pluralism demands the acceptance of different laws and mechanisms that draw legitimacy from international, state, local or non-official systems.27 In fact, legal pluralism is even embraced to an extent by international human rights jurisprudence.28 The next part introduces norm internalisation theory and its interaction with community laws.

3 Theorising norm internalisation and the place of community law

The internalisation of international norms has been defined as ‘a process by which states incorporate international law concepts into domestic practice’.29 Indicators of norm internalisation include the integration of the norms into domestic formal legal systems and into domestic administrative arrangements.30 However, the challenge lies in that there is a blurred conceptualisation of how norm internalisation percolates beyond formal domestication of international norms and formal institutional changes to reach rural settings dominated by customary law, tradition and practices in the African context (such as the community laws).

Several scholars recognise the relevance of local mechanisms in norm internalisation, but not in the context of phenomenon such as community laws. Zwingel appreciates that ‘the label of norm internalisation’ fails to expose diverse processes that unfold domestically after the state’s treaty ratification. 31 However, she does not allude to harmful practices or local processes such as community laws. Rajam and Zararia acknowledge that textbook rights must translate into lived rights in local communities,32 and that villagers may consciously or unconsciously translate global human rights discourses to local contexts.33 However, the authors were not studying community laws or harmful practices or other micro-processes. Zwart argues that local institutions are essential to the full implementation of international human rights34 without an examination of the mechanisms of local ‘laws’ or even the institution of chiefs. Even Merry’s norm internalisation concept of vernacularisation,35 which engages how international human rights ideas and practices seep deeper into and are made resonant with lived realities of small(er) communities,36 has not engaged the community laws phenomenon.

With these theoretical gaps in mind, the next part examines how international human rights jurisprudence approaches community law and informal systems.

4 Legal sources of the norms protecting women from harmful practices

Norms protecting women and girls from harmful practices are codified within both UN and AU human rights systems. At UN level, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)37 and the Convention on the Rights of the Child (CRC),38 which advance women’s and children’s rights respectively, legally establish the norm that women and girls should be free and protected from harmful practices. CEDAW’s approach to harmful practices is inspired by the Convention’s key principles: non-discrimination against women and gender equality. Zwingel further observes that ‘state responsibility’ is the third key principle of CEDAW.39

Despite some critiques that CEDAW portrays culture negatively,40 CEDAW has undeniably given traction to the concept of harmful practices.41 In striving to eliminate harmful practices, article 2(f) of CEDAW obliges states ‘to pursue a policy of eliminating discrimination against women by undertaking all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against women’. Article 5(a) commits state parties ‘to take all appropriate measures to modify the social and cultural patterns of conduct of men and women so as to eliminate prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women’. Cusack and Pusey rightly note that these two provisions are buttressed by the principle of transformative equality, desiring state parties to intervene and eliminate obstinate gender stereotypes.42

For its part, CRC is underpinned by four principles: non-discrimination; the best interests of the child; the right to life, survival and development; and respect for a child’s views.43 These principles ‘frame children’s protection from violence and harmful practices’.44 Article 19 of CRC proscribes all forms of violence against children, while article 24(3) requires state parties to abolish traditional practices prejudicial to children’s health. The prohibition of harmful practices is also implicit in several CRC provisions.45

The AU human rights system has also established the elimination of harmful practices as a legal normative standard.46 While the African Charter on Human and Peoples’ Rights47 (African Charter), does not openly proscribe harmful practices, several protocols to the Charter address harmful practices and child marriage more rigorously. The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (African Women’s Protocol)48 is lauded for taking a ‘more nuanced approach to culture and tradition’ when compared with CEDAW and the African Charter.49 According to Banda, the Women’s Protocol unequivocally rejects harmful practices by expansively defining what amounts to harmful practices.50 Thus, the Protocol owns women’s rights violations through harmful practices as African problems, and discredites views that such issues are driven by Western agendas.51

Besides article 5, which decrees legislative and other measures that states should take to eliminate harmful practices,52 several provisions of the African Women’s Protocol mandate states to address harmful practices. Article 2(2) of the Protocol has developed articles 2(f) and 5(a) of CEDAW53 by committing states to eliminate harmful tradition practices through public outreach strategies.54 Article 4(d) obliges states to use educational measures in eradicating traditional and cultural beliefs, practices and stereotypes that stimulate violence against women. However, article 6(c) of the Women’s Protocol is soft on polygamy, since it only ‘encourages monogamy as the preferred form of marriage’. Commenting on Article 17, Bond contends that the Women’s Protocol has higher potential55 to facilitate the local internalisation of human rights norms since it guarantees women the right to enjoy positive culture and to be key actors in the formulation of cultural policies.56 Furthermore, this right guarantees that women can dialogue with traditional leaders to ensure that women’s rights and positive cultural practices are localised.57

The African Charter on the Rights and Welfare of the Child (African Children’s Charter)58 similarly disapproves harmful practices. Article 1(3) discourages customs, traditions, cultural or religious practices that are inconsistent with the provisions of the Charter. Notably, ‘discourage’ is rather cautious language.59 However, article 21(1) plainly requires states to pursue ‘all appropriate measures to eliminate discriminatory social and cultural practices that harm the welfare, dignity, growth and health of the child’. For its part, the African Youth Charter60 directs that young people’s education should preserve and strengthen positive traditional values and cultures, and that life skills education curricula should address cultural practices harmful to young girls’ health.61 Implementation frameworks such as the AU Agenda 206362 and the African Agenda for Children 204063 buttress these commitments.

5 What does human rights jurisprudence require states to do to internalise norms protecting women and girls from harmful practices?

Various scholars assert that international norms as outlined above become fully institutionalised nationally as states integrate the norms into formal sources of national law, policy and practice, as the norms become accepted and enforced by law, and as the norms become local practice.64 Already, this norm internalisation model centres on formal institutional changes,65 and not informal community level changes, as the community laws. The ensuing narrative confirms that international human rights jurisprudence on harmful practices prioritises this ‘institutionalisation’ approach to norm internalisation, urging states to chiefly address harmful practices through legal and administrative exploits.

5.1 Norm internalisation through legal measures

The use of the formal domestic legal system and instruments in domesticating global human rights norms is preferred as ‘more proficient and programmatic’.66 Out of the analysed jurisprudence, only CEDAW General Recommendation 14 on female circumcision and other harmful practices (before being updated) did not explicitly demand legal measures for addressing female genital mutilation (FGM) and other harmful practices.67 Jurisprudence on legal measures calls for (a) the enactment and review of legislation; and (b) the criminalisation and enforcement of criminal sanctions.

5.1.1 Enactment and review of legislation

Despite recent position shifts, both UN and AU jurisprudence mostly urges states to purge harmful practices through formal laws. CEDAW General Recommendation 12 on Violence against Women starts by inviting states to report on legislation enacted to protect women from all kinds of violence.68 CEDAW General Recommendation 24 on women and health agitates for laws prohibiting FGM and child marriage.69

CEDAW General Recommendation 35, which updates General Recommendation 19,70 regrets that states breach their due diligence obligation to address gender-based violence against women through inadequate or deficient implementation of legislation.71 It recommends the prioritisation of functioning laws, institutions, and systems to address violence against women.72 The CEDAW Committee’s macro-delineation of arrangements that states should make in implementing General Recommendation 35 at legislative, executive and judicial levels exposes overt attentiveness to formal legal measures.73

CEDAW General Recommendation 33 on women’s access to justice also trumpets state-level mechanisms as the arsenal for resolving women’s justice-related challenges. It recommends measures that states should implement in six areas considered pertinent to guaranteeing women access to justice. These measures are mostly judicial or quasi-judicial, and within the formal justice machinery.74 Although the CEDAW Committee positively recognises alternative dispute resolution (ADR) processes75 and plural justice systems,76 its pitch that ‘VAW cases should never undergo ADR processes’77 divulges discomfort with these systems.78

The joint General Recommendation/General Comment 31 of CEDAW and 18 of CRC on harmful practices (2014) declares that states should prioritise developing, enacting, implementing and monitoring relevant legislation as ‘a key element of any holistic strategy to address harmful practices’.79 Legislation aimed at eliminating harmful practices must include befitting measures for budgeting, implementing, monitoring and effective enforcement,80 and provide victims of harmful practices with redress.81 Moreover, the joint General Recommendation/General Comment provides guidance on legislative considerations that states should make in order to effectively address harmful practices.82 CEDAW General Recommendation 36 on the right of girls and women to education supports measures that are prescribed by the joint General Recommendation/General Comment 31 of CEDAW and 18 of CRC.83 CRC General Comment 13 similarly urges states to pursue comprehensive legislative measures (including budgetary, implementation and enforcement) against all forms of violence against children.84 Furthermore, CRC General Comment 4 invites states to take all appropriate legislative measures and protect adolescents from all harmful practices.85

In the AU jurisprudence, the first call made by the joint General Comment of the African Commission on Human and Peoples’ Rights (African Commission) and the African Committee of Experts on the Rights and Welfare of the Child (African Children’s Committee) on ending child marriage (2017) is for states to ‘enact, amend, repeal or supplement legislation’ to prohibit the harmful practice of child marriage, and to set the minimum marriage age at 18 years. States are asked to make such legislation superior to customary, religious, traditional or sub-national laws.86 Standards that should be observed in constitutional reforms related to child marriage are also articulated.87 The emphasis on legislative reforms and the supremacy of legislation over other laws entails that formal legal structures are presumed to be the centres of human rights engineering, appropriation and internalisation, with the community/local structures being the recipients. Notably, some jurisprudence calls for criminal measures as well.

5.1.2 Criminalisation and enforcement of sanctions

Some jurisprudence recommends the criminalisation and imposition of penalties for harmful practices and violence against women. For example, CEDAW Recommendation 19 advises states to protect women from all kinds of violence through penal sanctions.88 Even the updated CEDAW General Recommendation 35 on gender-based violence against women exhibits a punitive inclination, urging states to prosecute and punish gender-based violence against women through courts and tribunals.89 Additionally, it urges that all judicial bodies are to strictly apply all penal provisions punishing gender-based violence against women.90 States will become complicit in promoting gender-based violence against women when they fail to investigate, prosecute, and punish perpetrators and to compensate victims.91

UN and AU jurisprudence has slightly different positions on punishment targets. The joint CEDAW General Recommendation/CRC General Comment expects states to consistently enforce criminal sanctions, while being mindful of ‘potential threats to and negative impact on victims, including acts of retaliation’.92 Thus, no perpetrator is exempted from punishment. The joint African Commission/African Children’s Committee General Comment asserts that states should not penalise/sanction children involved in child marriages. However, where they do, ‘states must carefully avoid any risk of retaliation against a child’.93 Unlike the joint CEDAW General Recommendation/CRC General Comment, which nets all perpetrators, the joint African Commission/African Children’s Committee General Comment is hesitant about the sanctioning of parents ‘to avoid clandestine child marriages’.94 Instead, it targets punishment towards those registering child marriages without conducting checks, those officiating child marriages, and ‘any person who actively encourages and facilitates a child marriage’.95 However, it is inconceivable how parents could be divorced from the latter category, or how children could be consistently protected if reprobate parents face no consequences.

Generally, applying punitive measures to harm affecting women, as well as the deterrent effect of such measures, is a controversial issue. For example, there is concern that ‘an abolitionist approach, backed by punitive measures like imprisonment and fines hardly works well for complicated challenges such child marriage and FGM, as penalties mostly lead to camouflaging the practices and driving them underground’.96 Even rape discourse demonstrates that some early feminists were hesitant to support harsh penalties for rapists, arguing that such penalties would result in fewer convictions (and, therefore, less deterrence) unlike light punishments.97

These conversations attest that in dealing with harmful practices, a ‘one-size-fits-all’ punitive approach that is encouraged by international jurisprudence, and that has been massaged into legislative approaches, may not always work. The next part illustrates that the jurisprudence also heralds formal administrative measures as important in tackling harmful practices.

5.2 Norm internalisation through administrative measures

Human rights jurisprudence recommends administrative measures that states ought to implement to address harmful practices in several categories: policy and other institutional frameworks; services for victims; budgetary resources; and capacity building/awareness raising.

5.2.1 Policies and other institutional frameworks

The jurisprudence bids states to undertake policy and other institutional measures at national and sector levels. CEDAW General Recommendation 4 on female circumcision charges states to review their national health policies,98 while CEDAW General Recommendation 24 requires states to protect women’s health by formulating policies, health care protocols and hospital procedures to address violence against women. 99 CEDAW General Recommendation 28 prompts states to design women-tailored public policies for the equal development of women and men.100 CRC General Comment 13 further expects administrative measures to involve policy establishment.101 CRC General Comment 4 stresses that states should regularly review and revise policies and strategies, and take all appropriate administrative and other measures to protect adolescents from all harmful practices.102

While each country has to determine appropriate measures for its comprehensive strategies or action plans for dealing with harmful practices, the joint CEDAW General Recommendation/CRC General Comment elucidates that such measures should target ‘specific obstacles, barriers and resistance to the elimination of discrimination that fuel harmful practices and VAW’.103 Similarly, Ibhawol has observed that cultural barriers to human rights should be identified, not for purposes of rejecting cultural traditions wholesale, but in order to understand their social bases so that apt human rights-based transformative solutions can be found.104

The intervention models that the jurisprudence recommends for states to adopt in their national strategies or action plans on harmful practices reveal a preference for programmes targeting the state machinery or those that are state-led, as opposed to community-(led) programmes. For example, CRC General Comment 13 advises states to introduce elaborate programmes, and monitoring and oversight systems to address all forms of violence against children within national and sub-national governments,105 and within governmental, professional and civil society institutions.106 The joint African Commission/African Children’s Committee General Comment promotes the establishment and improvement of official births and marriages registration systems.107

The joint General Recommendation/General Comment recommends that a special ‘high level entity should facilitate the vertical coordination of local, regional, and national level actors with traditional and religious leaders’.108 This suggests the intent that a national level structure should be in control. Even the joint African Commission/African Children’s Committee General Comment expects ‘competent judicial, administrative and legislative authority, or any competent authority provided by law’ to provide institutional remedies related to access to justice.109

The jurisprudence also primarily situates the establishment of administrative monitoring mechanisms for harmful practices and all forms of violence against women and violence against children at state level. CEDAW General Recommendation 33 recommends states to take measures that strengthen the accountability of formal justice systems.110 Similarly, the recommended ‘independent monitoring mechanism’ to track how women and girls are being protected from harmful practices under the joint General Recommendation/General Comment’s holistic strategy111 is likely to function at national level as well. CRC General Comment 13 promotes the national statistical system as an important tool in eliminating all forms of violence against children,112 and ‘strongly recommends’ formal mechanisms for reporting violence against children that are entwined with the state’s justice machinery.113

5.2.2 Services for victims

The CEDAW, CRC and African Commission/African Children’s Committee jurisprudence stresses that the state should ensure that victims of harmful practices access effective remedies and adequate protection. The joint CEDAW General Recommendation/CRC General Comment enjoins states to provide prevention, protection, recovery, reintegration, and redress measures to victims.114 Particularly, victims should access legal remedies, victim support and rehabilitation services and socio-economic opportunities.115

According to CEDAW Concluding Observations on Malawi’s state party report (2015), making justice accessible to women is part of the state’s duty to investigate, prosecute and adequately punish perpetrators of all harmful practices.116 CEDAW General Recommendation 33 stipulates that justice accessibility necessitates establishing justice access centres, such as one-stop centres,117 and the ‘creation, maintenance and development of courts, tribunals and other entities’.118 Legal remedies should include rehabilitation.119 The joint CEDAW General Recommendation/CRC General Comment regards medical, psychological and legal services as urgent support services for harmful practice victims.120 Even for women in rural and remote areas, the CEDAW Committee still promotes formal systems – mobile courts.121 Markedly, the Committee’s imagination regarding making justice systems accessible to women concentrates on judicial and quasi-judicial systems and technologies.122

The joint African Commission/African Children’s Committee General Comment proposes legal, health and education services for victims as well as those at risk of child marriage. Legally, it recommends that states should establish women’s and children’s police units.123 Health services should include providing age-appropriate comprehensive sexual and reproductive health school curricula;124 and comprehensive sexual and reproductive health services to girls, including married girls.125 Educational services should include the provision of sanitary facilities for girls and bursary programmes targeting girls at risk.126

The joint African Commission/African Children’s Committee General Comment recommends that states should provide support for boys and girls who are already in marriage. Such support includes comprehensive social protection and health services, education assistance, legal assistance, and parenting support.127 In this way the joint General Comment seeks to reduce the harsh impacts of child marriage on and further victimisation of those who married as children.128 The already married category is not clearly covered in the support meant for ‘children and women who are, or are at high risk of becoming victims of harmful practices’129 under the joint CEDAW General Recommendation/CRC General Comment.

The various services require money, and the jurisprudence regards budgets as essential in internalising norms protecting women from harmful practices.

5.2.3 Budget and resource allocation

Under the jurisprudence, successfully addressing harmful practices cannot be achieved without central and local government budgets. The joint CEDAW General Recommendation/CRC General Comment and CRC General Comment 13 uphold the budget as one key strategy for implementing legislation to address harmful practices and violence against children respectively.130 CEDAW General Recommendation 35 expects the executive to coordinate with relevant state agencies and commit adequate budgetary resources for the implementation of specific institutional measures.131 The joint African Commission/African Children’s Committee General Comment anticipates that states would meet their obligations under the General Comment by ‘allocating sufficient budgetary and other resources’ towards ending child marriage.132

Thus, the availability of budgets and resource allocation towards the implementation of institutional laws, policies and programmes targeting the elimination of harmful practices is an important indicator of whether states have internalised the norm protecting women from harmful practices. Relatedly, budgets are also vital for capacity-building interventions related to harmful practices.

5.3 Norm internalisation through capacity building and awareness raising

5.3.1 Nature of capacity-building and awareness-raising interventions

The CEDAW, CRC and African Commission/African Children’s Committee jurisprudence on harmful practices is unrelenting about the need to immerse wide categories of people in the human rights discourse if socio-cultural transformation leading to the abandonment of harmful practices is to materialise. This should be achieved through top-down ‘capacity building’, ‘trainings’, ‘awareness raising’ – and often the difference between these terminologies is vague.133

‘A comprehensive, holistic and effective approach to capacity building’ should focus on attitudinal and behavioural transformations towards harmful practices among targeted groups and the wider community.134 The jurisprudence recommends capacity-building measures for purposes of empowering various cadres of duty bearers to know human rights norms and apply them to their services domains. UN jurisprudence shows that for the activities branded as ‘capacity building/training’, the CEDAW Committee has at times been engrossed with professional groups. For example, CEDAW General Recommendation 24 on women and health requires states to train health workers to spot and manage the health impacts of gender-based violence.135 In the justice sector, CEDAW General Recommendation 33 instructs states to arrange ‘capacity-building programmes for judges, prosecutors, lawyers and law enforcement officials’.136

However, the joint CEDAW General Recommendation/CRC General Comment accommodates both formal and informal structures in the ‘comprehensive, holistic and effective approach to capacity building’ that states should implement at all levels to eliminate harmful practices.137 It observes that a key preventative measure is to develop the capacity of all relevant professionals who are in regular contact with victims, potential victims and perpetrators of harmful practices.138 Police, public prosecutors, judges and other law enforcement officials should be trained to implement legislation criminalising harmful practices, equipping them with knowledge and skills about women’s and children’s rights, as well as victim handling.139 Additionally, the joint General Recommendation/General Comment prompts states to include those serving in ADR and traditional justice systems in human rights training programmes.140

CRC General Comment 13 also supports building the capacity of personnel in both formal and informal structures. It requires states to provide initial and in-service general and role-specific training to all professionals and non-professionals working with and for children, including traditional and religious leaders, so that they can protect children from all forms of physical or mental violence.141 The CRC Committee prefers that educational measures towards addressing attitudes, traditions, customs and behavioural practices that condone and promote violence against children should be implemented under the state’s responsibility.142

The joint African Commission/African Children’s Committee General Comment recommends that training programmes should be implemented for prosecutors, court personnel, national human rights institutions, civil society organisations supporting child marriage victims, and statutory bodies.143 Additionally, states should ‘conduct trainings and capacity building workshops for marriage and birth registration officials, teachers, health providers, judicial officers, and religious, community and traditional leaders’, to enlighten them of laws proscribing child marriage and the rights of children to be protected from child marriage.144

When it comes to interventions coined ‘awareness raising,’ CEDAW General Recommendation 35 proposes that these programmes should target women and men at all societal levels; education, health, social services and law enforcement personnel and other professionals and agencies involved in prevention and protection responses; traditional and religious leaders; and perpetrators of any form of gender-based violence.145 The joint CEDAW General Recommendation/CRC General Comment stipulates that traditional and religious leaders should be given accurate information about applicable human rights norms in order to renew their thinking.146

Furthermore, the joint CEDAW General Recommendation/CRC General Comment advises states to raise awareness of the causes and consequences of harmful practices through dialogue with relevant stakeholders.147 Awareness-raising programmes targeting state structures should engage decision makers, relevant programmatic staff and key professionals working within local and national government agencies.148 Personnel within national human rights institutions should also be awakened to the human rights implications of harmful practices so that they can focus on eliminating such practices.149

The above demonstrates that international human rights jurisprudence on harmful practices considers human rights education and awareness raising, including of traditional leaders, as a key step in creating an enabling environment for transforming traditional practices harmful to women and children.150 This begs the question whether community systems are expected at all to be responsible for designing and facilitating education and awareness-raising interventions.

5.3.2 Conceptualisers of education and awareness-raising interventions: Positioning of the state, civil society organisations and traditional leaders

The CEDAW, CRC and African Commission/African Children’s Committee jurisprudence on harmful practices recommends that states should design and implement awareness raising and education and capacity-building programmes. The jurisprudence is partially noncommittal about the need for the state to partner with civil society organisations and other local allies (norm translators/vernacularisers) in developing relevant programmes. For example, CRC General Comment 4 places on state parties the onus of developing and implementing awareness-raising campaigns and education programmes to overcome harmful traditional practices.151 The joint African Commission/African Children’s Committee General Comment asserts that enforcement and awareness will occur only if states train all relevant stakeholders, especially government officials, police and the judiciary to protect girls and boys from child marriage and its effects.152

Part of the jurisprudence explicitly mandates states to design awareness-raising campaigns and education programmes together with civil society organisations. For example, CEDAW General Recommendation 35 requires states to develop and implement effective awareness and education measures153 with the active participation of women’s organisations and marginalised groups of women and girls.154 Similarly, the ‘ethnicity and minority sensitive’ targeted outreach activities under CEDAW General Recommendation 33 are to be designed in close cooperation with women’s and other relevant organisations.155 Additionally, states are to cooperate with non-state actors in capacity-building and training programmes for justice system personnel.156 Also, CRC General Comment No 13 stipulates that both state and civil society organisations should facilitate educational measures, although the state is given overall responsibility.157

Besides trusting state actors and civil society organisations, jurisprudence developed in 2014, 2016 and 2017 respectively has pushed the frontiers and embraced local or traditional leaders in the pipeline that designs programmes, and transports human rights norms to the ground. The joint CEDAW General Recommendation/CRC General Comment promotes the engagement of all relevant stakeholders, including local leaders, practitioners, grassroots organisations and religious communities, in preparing and implementing public discussion activities for eliminating harmful practices.158 Similarly, CEDAW General Recommendation 34 invites states to adopt outreach and support programmes, awareness raising and media campaigns to eliminate harmful practices and stereotypes in collaboration with traditional leaders and civil society organisations.159

The language of ‘collaboration’ is also found in the joint African Commission/African Children’s Committee General Comment, which urges states ‘to facilitate dialogue, and promote collaboration between all stakeholders and particularly traditional, community and religious leaders, in preventing child marriage’ as one harmful practice.160 However, unlike CEDAW General Recommendation 34 that only specifies collaboration with traditional leaders when the state is adopting awareness programmes, the nature of collaboration in the joint General Comment could be variedly interpreted. It could either mean that traditional, community and religious leaders should be involved in implementing child marriage preventative strategies or that they should in fact also participate in developing such strategies.161

However, whatever the case, the fact that the above jurisprudence is not integrating traditional leaders as mere targets of awareness and education certainly is a paradigm shift. It addresses Bank’s concern that CEDAW jurisprudence fails to guide states to collaborate with providers of customary justice as meaning making institutions and actors.162 By conscripting traditional leaders in both the formulation and facilitation of awareness programmes against harmful practices, traditional leaders are effectively being endorsed as having a role in diffusing human rights norms to the local.

One would argue that it is not surprising that traditional leaders have weight in CEDAW General Recommendation 34, the joint CEDAW General Recommendation/CRC General Comment and the joint African Commission/African Children’s Committee General Comment – which are primarily about rural dealings163 – since this is the best opportunity to capitalise on the territorial influence of traditional leaders. Nevertheless, the development is a fresh twist given the circumspect attitude that the same jurisprudence holds towards plural justice mechanisms, as the next part demonstrates.

Still, one should be mindful that the positive shifts notwithstanding, the foregoing illustrates that the extent to which traditional leaders are entrusted with the responsibility to facilitate norm internalisation pales compared to the high demand in the jurisprudence that they should be targets of awareness-raising and capacity-building programmes. Clearly, the very responsibility of traditional leaders to culturally sanitise ‘the other’ comes with the duty to first subject ‘the self’ to the internalisation dosage.164

5.4 Position of plural and community law in the jurisprudence

Jurisprudence regarding alternative dispute resolution (ADR) and plural legal systems is relevant because the community laws could fall under either. CEDAW General Recommendation 33 describes ADR processes as mandatory or optional systems that many jurisdictions have adopted for mediation, conciliation, arbitration and collaborative resolutions of disputes. ADR is mainly applied in issues of family law, domestic violence, among others.165 Informal ADR processes include ‘non-formal indigenous courts and chieftaincy-based ADR, where chiefs and other community leaders resolve interpersonal disputes’.166 The community laws on harmful practices could operate as the ‘chieftaincy-based ADR’ mechanism since they are informally used to resolve locally-contexualised challenges affecting women and girls.

Relatedly, CEDAW General Recommendation 33 defines plural legal systems as ‘religious, customary, and indigenous or community laws and practices that sometimes legally coexist with state laws, regulations, procedures and decisions’.167 By individually mentioning customary law and community law, the CEDAW Committee contradicts Onyango’s assertion that customary law is community law.168 Therefore, the community laws in Malawi would fit under the jurisprudence’s ‘community law’ label, especially as the jurisprudence considers it immaterial ‘whether or not such laws have categorical legal basis’.169

Examined chronologically, the jurisprudence on harmful practices has been unstable in its endorsement of ADR and legal pluralism systems as potential mechanisms for addressing harmful practices. The joint CEDAW General Recommendation/CRC General Comment in 2014 concedes that ADR or traditional justice systems could sometimes be deployed to respond to harmful practices.170 However, the joint General Recommendation/General Comment affirms that states’ obligations under CEDAW and CRC171 prohibiting harmful practices supersede customary, traditional or religious laws.172 Thus, the joint General Recommendation/General Comment recommends the instant repeal of all legislation, traditional, customary or religious laws that condone, allow, or stimulate harmful practices.173

Then, while acknowledging the relevance of ADR and pluralist processes, CEDAW General Recommendation 33 of 2015 cautions that these flexible and cheaper processes may habour patriarchal values that embolden perpetrators, violate women’s rights, and hinder women’s access to justice.174 Therefore, it utterly disapproves of subjecting any case of violence against women to ADR processes.175 Like the joint General Recommendation/General Comment, General Recommendation 33 expects multiple sources of law, notwithstanding their legal viability,176 within states to respect and protect women’s rights according to CEDAW and other human rights principles.177 Thereafter, CEDAW General Recommendation 35 if 2017 reverts to the position accommodating ADR, only disputing the mandatory reference of violence cases to ADR procedures; and calling for ADR procedures to be strictly regulated.178 It further urges plural legal systems to protect victims of gender-based violence against women and guarantee them access to justice and effective remedies.179

The fact that the jurisprudence between 2014 and 2017 exhibits fluctuating positions on whether violence against women, which includes harmful practices, should be subjected to ADR, including within traditional mechanisms, reveals that the jurisprudence on harmful practices itself is a living negotiation site.180 Indeed, Krook and True have observed that norms evolve as their content is subjected to continuous scrutiny or affected by emerging developments.181 Zwingel has also called norms ‘never finished products and content-in-motion’. 182

In recognising both the risk and the potential of plural justice systems to women’s access to justice and women’s rights generally, the jurisprudence draws attention to debates about living customary law, cultural relativism and universalism. CEDAW General Recommendation 33 expects states to reconcile existing plural justice systems with CEDAW by, among others, formally recognising and codifying religious, customary, indigenous, community and other systems.183 However, the codification of customary law or equivalent is contested by living customary law scholars.184 Furthermore, the pre-eminence of education and awareness-raising measures to promote norms protecting women from harmful practices in the jurisprudence betrays the commitment of the jurisprudence to universalism – the notion that all societies must protect certain minimum standards of human dignity185 – and not cultural relativism.

This bias towards universalism is underlined by the jurisprudence’s rejection of any form of harmful practices and violence against women and violence against children, both in law and in practice. The rejection of cultural relativism is evident in the various instances when the jurisprudence denotes that culture and tradition directly incite harmful practices against women and girls.186 This universalistic approach has been justified by concerns that ‘the respect of cultural differences’ may eventually translate into women’s rights invasions.187

The implication of the jurisprudence’s positivist approach to human rights is that CEDAW and CRC are not seen as ‘legal codes amongst the several alternatives that exist in a plural legal field’.188 Yet, it has been proven that in plural legal systems, the enthusiasm by a treaty-monitoring body to universalise could lead to the misunderstanding of local ‘legal’ arrangements that communities find functional.189 This is a risk that orderings, such as the community laws on child marriage and harmful practices in rural Malawi, face, especially when they come across as potentially diluting statutory law and human rights standards. Indeed, the jurisprudence suggests that the internalisation of the norms protecting women from harmful practices either within ADR or other traditional processes would be incomplete if international human rights standards are shortchanged.

6 Conclusion

A key aspect of the international human rights law and jurisprudence on harmful practices are measures that states are expected to pursue to eliminate harmful practices. International law and jurisprudence suggest that internalisation of norms protecting women from harmful practices should address three programmatic areas, predominantly at the formal or macro-level. There is a resounding call for states to prioritise legislative measures, administrative measures, and to adopt policy and other capacity building, training, awareness raising as a strategy for ensuring that different duty bearers are internalising international standards towards eliminating harmful practices.

Notably, community laws are not a legislative measure under the jurisprudence. Rather, CEDAW jurisprudence suggests that community laws fall under ADR and plural justice systems and recommends that plural justice systems should be harmonised with CEDAW through codification. Over the years, the jurisprudence seems unstable about whether to subject violence against women to ADR. This inconclusiveness confirms that international human rights norm negotiation is rolling business.

Newer jurisprudence that tasks the state to design and implement awareness raising and education or capacity-building programmes in collaboration with traditional leaders is a novelty, considering that the jurisprudence is generally nervous about plural justice mechanisms. Therefore, the emergence of community laws in contexts such as rural Malawi is challenging relevant UN and AU human rights treaty-monitoring bodies to critically examine the current stance that suggests that norm internalisation is mostly credible within state or formal institutions and systems. Yet, the community laws, which are also internalising the norm protecting women from harmful practices, are at the level of chiefs and their subjects and territories.

More remains to be understood about community laws on harmful practices themselves, for example, what domestic laws say about their domestication as well as about harmful practices in general; and how the community laws are actually internalising human rights norms on the ground, and how they contrast with customary law. All these are topics for further articles.190