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ABSTRACT
Like many other African countries, Burundi has a pluralistic legal system, where on the one hand written laws coexist with uncodified customary laws and on the other hand informal justice institutions are still used in the day-to-day conflict resolution by many Burundians despite a provision in the Constitution that makes the mission of rendering justice the monopoly of the state courts. Both before the state courts and out-of-court forums for adjudicating disputes and justice mechanisms, women face challenges that limit their access to justice, compared to men. This paper argues three main points. First, that while there is a relationship between women’s limited access to justice and the pluralistic nature of Burundi’s legal system, the challenges faced by women in accessing justice should not be excessively associated with legal pluralism, thus hiding the impact of extra-legal factors. Second, that while Burundi’s constitutional framework is progressive with respect to gender equality and most laws are gender neutral, some shortcomings still exist in the overall legal framework, thus limiting the potential of the constitutional legal framework with respect to gender equality. Third, that by increasing gender diversity in the judiciary, and with much more positive activism and training, Burundian judges could ensure equal access to justice for women by using the potential of existing national and international legal frameworks.
Disclosure statement
No potential conflict of interest was reported by the author.
Table 1. Gender representation in some key institutions in the Judiciary as of 07 September 2020.
Table 2. Gender representation in leadership positions (heads of superior courts and office of the prosecutors at those courts) as of 07 September 2020.
Notes
1 On these concepts, see, inter alia, (Diala 2017; Himonga 2011; Bekker and van Niekerk 2010).
2 For further information and references: Niyonkuru, A.-P. (2016). Le droit d’accès au juge civil au Burundi : Approche juridico-institutionnelle. KU Leuven. See particularly p.63, note 254.
3 Article 37 of the Code of Civil Procedure’, Pub. L. No. Law n° 1/010 (2004), Official Gazette of Burundi, N° 5bis 2005.
4 See Ministry to the Presidency in charge of Good Governance, privatization, General Inspection of the State and Local Administration, Etude diagnostique sur la gouvernance et la corruption au Burundi, Survey Report, Bujumbura, May 2008, p. 9.
5 On this issue, see among others, Niyonkuru, A.P., (Citation2019).
6 See Chart 12 (Q.12) and Chart 22 (Q.22).
7 Most studies on women’s access to justice focus on Africa, Latin America, Asia, which are known to be parts of the world most concerned by legal pluralism.
8 In this regard, Lord Chief Hewart notes that “[j]ustice must not only be done, it must also be seen to be done” (R v Sussex Justices, Ex parteMacCarthy [1924] 1 KB 256, [1923] All ER 233.
9 On the “Rights of women”, Section 33(1) of the Ugandan Constitution provides that “Women shall be accorded full and equal dignity of the person with men”. The same Constitution further prohibits “Laws, cultures, customs or traditions which are against the dignity, welfare or interest of women or which undermine their status” (Section 33 (6).
10 Uganda is a State Party to several international human rights treaties without reservation. These treaties include: Convention on the Elimination of All Forms of Discrimination Against Women, the two International Covenants on human rights adopted in 1966, the Convention on the Rights of the Child and the African Charter on Human and People’s Rights.
11 Halperin equates the “law in books” “with the description of rules (especially rules issuing from the state), and law in action, identified with the multiplicity of legal disputes (including legal disputes outside the sphere of state)”.
12 By virtue of Article 1 of Ordinance of 14 May, 1886 of the General administrator of the (Belgian). Approved by the Decree of November 12, 1886; rendered applicable to Burundi by virtue of Ordinance of Ruanda-Urundi No. 11/82 of June 21, 1949 [issued by the Vice-Governor General of Ruanda–Urundi] (Official Gazette of Ruanda-Urundi, 1950, p.195).
13 Admittedly, some case law regarding women’s inheritance to land has witnessed a spectacular evolution towards more and more equality between men and women (e.g. RTC 261, judgment of 8 March 1995). However, no consistent and uniform case-law on gender equality is yet settled; RCC 10367, judgment of 31 August 2005; RCC 11023, judgement of 28 April 2006
14 Nyūmbakumí is a Swahili compound word made up of two words, “nyumba” (house) and “kumi” (ten), which means the main local administrative unit made up of ten neighbouring households.
15 Mashariki TV, https://www.youtube.com/watch?v=w_OsPOHqZwU.
16 The following laws were revised: The Code of Nationality of 10 August 1971 (reformed on 18 July 2000); the Code of Persons and the Family of 15 January 1980 (revised on 28 April 1993); The Commercial Code Decree of 2 August 1913, rendered applicable to Burundi by virtue of Ordinance Law on Ruanda –Urundi No. 60 of 15 January 1925 (revised on 7 July 1993) and the Criminal Code of 4 April 1981 (as revised to date).
17 A set of Pregnancy test kits are reported to be close to 100% accurate since the first day of presumed delay of menses (Billaud et al. 2015).
18 The original excerpt in Kirundi, the National language of Burundi reads as follows: “Kubera ko sentare isanga mu mico n’imigenzo y’ikirundi umugore ata burenganzira yari afise bwo kuraga ko haraga umugabo gusa (…) irahakanye ko ataburage bwabaye hagati ya M.na M.P.” (RCSA 72/GIT, judgment of 30 December 2014).
19 The Protocol was adopted by the 2nd Ordinary Session of the Assembly of the African Union in Maputo (Mozambique), on 11th July 2003. It entered into Force on 25th November 2005.
20 Law NO. 1/07 of 25 February 2005 governing the Supreme Court, Official Gazette of Burundi, No. 3 quater/2005.
21 Article 1 of Law NO. 1/21 of 3 August 2019 amending Law NO. 1/07 of 25 February 2005 governing the Supreme Court.