Several people have asked me why I am so focused by customary law systems and the impact on women. The simple answer is because women are frequently oppressed and are not treated equally under these systems which is illegal and harmful. They frequently do not have a say in basic life decisions in traditional communities and they do not have economic independence that would allow them to leave their community (or good education that would allow them to find work).

What causes issues in these systems is of course, quite complicated and results from the social reality created by history (including colonial history). In Namibia, because blacks were treated as lesser human beings by whites, it is now politically complicated (for everyone) to challenge traditional cultures and practices—even where entire sub-groups (i.e. women and individuals identifying as LGBTI ) are not afforded their constitutional rights. The historic oppression of blacks seems to be the reason that traditional communities have been given such great autonomy (under the Namibian Constitution customary law is allowed to co-exist with civil law to the extent that it does not conflict with Constitutional rights). While in theory customary law CANNOT interfere with constitutional rights, the geographic isolation of some communities and the lack of oversight over decision-making (again, there is A LOT of autonomy given), means that in reality traditional leaders are the end all be all in their communities.

Stated more simply, history has created a situation in which indigenous women are oppressed by everyone and under the current structure no one is able to do much (if anything) about it. This is significant since most Namibians live according to customary law (and its beliefs) and customary courts are the main way that individuals in rural areas access the legal system.

There is infinite potential for abuse and discrimination against indigenous women and minorities in these systems (and there is quite a bit of evidence that such abuse and discrimination occurs often). This is (in part) because there is limited access to remedies (under customary law) and culturally, many individuals would be afraid to bring a case in a civil or criminal court (one outside of the customary law system) because they would be stigmatized and possibly even ostracized by their community. Women would have nowhere to go in such a situation.

Further, this situation is not unique in Namibia. Countries in Africa, the Near East, the Pacific Islands, and Europe have customary or traditional law systems that tend to be (at least) somewhat autonomous from the government. According to the CIA Factbook, 40 countries in the world have customary law systems or customary law has influenced their current laws. Note that this does not include Islamic, or sharia law, which is a different topic.

While not all customary laws are harmful, the very characteristics that define such systems can cause significant problems. Two important and typical characteristics are that customary law (1) is not written down and (2) is focused on reconciliation instead of punishment (and is thus flexible). While in theory these qualities sound desirable, such a structure makes it difficult to predict what the consequences of an (illegal) act will be (this is a rule of law issue) and this structure also tends to have a negative impact on vulnerable groups who are frequently victims of crime (i.e. women).

For example, in Namibia, there is a situation in which sexual assault victims are pressured into dropping criminal cases by family members or others , who may prefer (monetary) remedies (i.e. cattle) awarded under customary law.

This situation is problematic where the victims are coerced into withdrawing criminal cases. Their families may pressure them into dropping criminal cases because they may (1) prefer to have the money; (2) not want to have bad publicity for their village (even for the perpetrator of a violent sexual assault!) and; (3) they may not want to draw negative attention to their daughter (in Namibia and other parts of the world, victims may be blamed for violence committed against them and there may in some cases also be concern about whether a victim will be marriageable). On multiple levels, this is a huge problem—especially if the victims do not have a say in what happens!!! In many areas in Namibia, a woman must abide by the wishes of her parents or be socially stigmatized, thereby creating another situation in which indigenous women do not have agency.

I think this is a crucial research topic, specifically (1) how customary court decisions influence women’s decisions to withdraw criminal cases and (2) how customary court decisions influence sentencing in criminal cases (i.e. if criminal sentences are reduced after monetary compensation is paid under customary law). It is key that victims are aware that under Namibian law, they may bring both a criminal and a civil case. Further, customary systems, as well as civil and criminal courts, must utilize the most effective deterrent(s) to address the incredibly high rates of gender-based violence in Namibia.