African Feminisms and Women in the Context of Justice in Southern Africa [1st ed. 2022] 3030821277, 9783030821272

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African Feminisms and Women in the Context of Justice in Southern Africa Edited by Cori Wielenga

African Feminisms and Women in the Context of Justice in Southern Africa

Cori Wielenga Editor

African Feminisms and Women in the Context of Justice in Southern Africa

Editor Cori Wielenga Centre for Mediation in Africa University of Pretoria Hatfield, South Africa

ISBN 978-3-030-82127-2 ISBN 978-3-030-82128-9 (eBook) https://doi.org/10.1007/978-3-030-82128-9 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Foreword

In 2021, the theme of International Women’s Day is ‘choose to challenge’. It calls for celebrating women’s achievements around the world to show that women already play an important role in various sectors of various societies, hoping to inspire other women to follow suit and to challenge prevailing patriarchal structures. As I sit down to write these lines on 8 March 2021, I am convinced that this volume will contribute to inspiring and motivating women to do just this. For this is what this book is about. Central to the book is the importance of female agency in delivering justice on the ground in Southern Africa. What roles do women play? How has this changed over time? How can women deal with conflicts in often strongly patriarchal societies? What strategies do they employ to achieve their objectives? Yet this is not a book about the Ruth Bader Ginsburgs of Southern Africa, it is a book about little steps and strategies of rural women in the everyday. Day in, day out they contribute to family and community courts in their respective societies; it is the lived and profoundly situated experiences of female agents that stand in the spotlight. In line with recent contributions to African feminisms, we learn about their positionality and intersectionality as well as their efforts to negotiate male dominance in the search for justice. Community and family courts follow rules that have developed and changed over long periods of time and are deeply emplaced in a particular locality. They do not follow national or even international legal norms. v

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There has been a strong interest in notions of community justice over the past 20 years, in particular regarding African societies. Against the backdrop of highly prominent cases such as the Gacaca tribunals in Rwanda or Mato Oput in Northern Uganda, much has been written to explore if and how these justice mechanisms relate to national courts or international tribunals, and—measured against the standards of punitive justice— how just they actually are. Often with the gaze of the Western researcher, questions of inclusivity, gender justice and human rights standards have been raised. While this has contributed to interesting insights, much of the analysis stays one step removed from understanding dynamics on the ground. In contrast, this volume takes a local turn by zooming in on community justice projects in Southern Africa. It assesses how people—and here particularly women—who are engaged in these practices understand notions of justice. The individual case studies sensitively present examples of relational justice and illustrate that localised notions of justice go way beyond resolving disputes. Justice on the ground rather seeks to restore community relations as well as contribute to the well-being of society and the cosmos. In exploring and elaborating on emplaced and highly nuanced notions of justice, the volume makes a strong statement for listening and learning from societies in order to understand different meanings of justice, and to appreciate the abundant local resources that exist to right wrongs. That women play a central role in these processes is key. As agentive subjects, they manoeuvre in and around community and family courts and inform these institutions’ decisions. This form of agency might go unnoticed if viewed from the perspective of Western feminisms and corresponding notions of justice, yet it comes with its own power and effect. It teaches us that celebrating women’s achievements—on International Women’s Day as well as on any other day of the year—requires considering the achievements of all women as relevant in their own local context, with their own local strategies and their own local successes and setbacks.

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It chooses to challenge not only patriarchal structures but also preconceptions of justice and feminisms as well as notions of emplaced female agency. Susanne Buckley-Zistel Executive Director Centre for Conflict Studies Philipps-Universität Marburg Marburg, Germany

Preface

This volume builds on the work of a longer-term project at the Centre for Mediation in Africa on conflict mediation by non-state actors on the African continent. The work that is reflected in this volume perhaps started with a project in 2015 by Dr. Chris Nshimbi and I on community justice practices during periods of transition. At the time of being involved in this project, Dr. Nshimbi and I were based at the Centre for the Study of Governance Innovation (GovInn) at the University of Pretoria, where we were interested in the intersection of governance practices at international, national and local levels. In the course of this project, which was supported by CODESRIA, we became aware that there seems to be a knee-jerk reaction to community justice practices and governance systems, including that such practices are ‘patriarchal’ and ‘gender-biased’, and thus that they need to be abolished. This led me to embark on a project with a team from the Department of Political Sciences at the University of Pretoria, supported by the Centre for Sexualities, AIDS and Gender (CSA&G), to explore the assumptions about the gender bias of community justice practices. Our work coincided with the commitment of the CSA&G to work with nongovernmental organisations (NGOs) in Southern Africa to better understand issues of gender justice at the community level. Our shared position was that we need to understand gender dynamics at the community level on its own terms, and not necessarily through a ‘western feminist’

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lens. Drawing on the work of feminist scholar Kimberley Crenshaw, our starting point was that the intersection between locality, race, class, and the colonial experience shape the gendered experience differently. The initial result of this collaboration was the publication of the monograph Wielenga, C. (Ed.) 2018. Women in the Context of Justice: Continuities and Discontinuities in Southern Africa. This collection published through the CSA&G Press, supported by Irish Aid, reflects earlier work in interpreting the findings of our field work and starting a wider debate. Some of that work is included in this publication and is reproduced with permission. We would like to acknowledge and thank the CSA&G for supporting our endeavour to understand the role of women in justice practices in southern Africa. In this volume, we explore the intersections of locality, race, class and the colonial experience specifically in relation to how communities meet their justice needs. Again, we seek to understand ‘justice’ from the perspective of the community, and to define it broadly to include the general well-being and harmony of the community. In our exploration of justice practices, we find that women play a central role. We believe this may be a starting point in bringing nuance and complexity to the kneejerk assumptions that justice practices in Southern Africa are oppressive to women, and that women have no agency in shaping their own society. The human and relational resources in communities on the ground are astounding and has led to our conviction that the starting point for any intervention needs to be a full understanding and appreciation of the resources already present in a community before introducing any additional resources that we might bring. I would like to thank my research team which enthusiastically embraced the opportunity to spend time with people in rural and peri-urban communities in South Africa, Namibia, Zimbabwe and Mozambique, to try to understand women’s roles in these contexts. Flat tyres on dusty roads, long conversations regarding conceptual ideas, and late nights to complete drafts of reports were all par for the course for this great research team which remained dedicated to the task of trying to grapple with what we are finding ‘on the ground’. We would also like to acknowledge all the people in Alexandra, Okombahe, Mudzi and Gueguegue who offered their time to speak with us about their day-to-day realities. We thank the traditional authorities,

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community leaders, local government officials, and all the women and men who participated in our research project. Cori Wielenga Acting Director Centre for Mediation in Africa University of Pretoria Hatfield, South Africa Acknowledgments Parts of this volume were first published by the CSA&G Press (an imprint of the Centre for Sexualities, AIDS and Gender at the University of Pretoria) in: Wielenga, C. (Ed.) 2018. Women in the Context of Justice: Continuities and Discontinuities in Southern Africa. Copyright 2018 by the CSA&G press, https://www.csagup.org/publications-and-resources/. Reprinting and/or adaption for this volume with permission.

Contents

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Introduction: Women’s Roles in Justices Practices in Southern Africa Cori Wielenga

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African Feminisms and Justice on the Ground Cori Wielenga

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Mending Social Relations: A Community Court in a Namibian Village and Extending a Relational Quality of Justice on the Ground Bosco B. Bae, Erika Dahlmanns, Cori Wielenga, and Chenai Matshaka

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Creating Social Harmony: Justice on the Ground in Mudzi and Hurungwe Districts, Zimbabwe Ruth Murambadoro

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Women at the Centre: The Case of Gueguegue Community, Boane District, Mozambique Zefanias Matsimbe

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The Dissolution of a Customary Marriage: Women and the Traditional Court System in South Africa Welekazi Stofile and Mahlatse Mpya

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Conclusion: Supporting Justice on the Ground in Southern Africa Cori Wielenga

Index

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Notes on Contributors

Dr. Bosco B. Bae is Visiting Assistant Professor of Religious Studies at the University of Lynchburg and Research Associate with the Centre for Mediation in Africa in the Department of Political Science at the University of Pretoria. He was awarded his Ph.D. in the Interdisciplinary Study of Religion from the University of Durham and completed Postdoctoral Research Fellowship with the Human Economy Programme at the University of Pretoria. His most recent research and fieldwork have been concerned with traditional African healers (sangomas) in the township of Alexandra and modern Buddhists in Sandton, Johannesburg, and their respective approaches to well-being, communal flourishing and engagement, as well as issues of justice that emerge from the spaces between religion and socio-economic conditions. He has also completed preliminary fieldwork in Namibia and Nigeria. Additional research interests include: the study of belief; implicit bias; embodiment; epistemic injustice; religion, culture and society; religion and money; human economy; morality and ethics; inequality; justice; and African and East Asian traditions. Dr. Erika Dahlmanns holds a Ph.D. in Cultural Anthropology/Conflict Studies from the Bayreuth International Graduate School of African Studies (BIGSAS) at the University of Bayreuth (Germany), where she wrote her doctoral thesis on issues related to local political imageries and practices of social reconstruction in post-genocide Rwanda. She has been awarded research fellowships from the Gerda Henkel Foundation and the German Research Foundation (DFG) and conducted fieldwork in Rwanda xv

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at the Rwandan National Unity and Reconciliation Commission (NURC), among prison inmates and artists between 2006 and 2011. Since 2010, she has been working as a trained mediator and a lecturer at the PhilippsUniversity of Marburg (Germany), teaching courses related to collective violence, mediation, nationalism and development. In 2010 and 2011, she curated an exhibition entitled ‘Ruanda Gezeichnet: Gesellschaft – Geschichte – Genozid’ that showed drawings collected from Rwandans, depicting images of Rwandan history and society after genocide. Dr. Chenai Matshaka is a Senior Researcher at the Institute for PanAfrican Thought and Conversation (IPATC). She holds a Ph.D. in Political Science from the University of Pretoria and has worked with diverse research institutions and Non-Governmental Organisations (NGOs) in South Africa and Zimbabwe on human rights and security, transitional justice, as well as migration and refugee issues, all of which also form part of her research interests. Dr. Zefanias Matsimbe is a senior lecturer at the Department of Political Science and Public Administration at Eduardo Mondlane University, Mozambique. He holds a Ph.D. in Political Science from the University of Pretoria. He collaborates with the European Centre for Electoral Support (ECES), Ethiopian office, as senior electoral expert and electoral trainer. He coordinates the online courses for the Ethiopian electoral stakeholders based on the Masters in Electoral Policy and Administration (MEPA), an online programme by the Scuola Superiore Sant’Anna, providing comprehensive advanced learning on electoral processes. His areas of research interest include democracy and electoral processes, voting behaviour, political party development, electoral management bodies, electoral systems, money in politics, leadership and electoral conflicts management. Mahlatse Mpya is a projects coordinator at the Afro-Middle East Centre (AMEC). She holds a Master’s Degree in Public Administration and Management from the University of South Africa (UNISA). She is also a consultant at Tshwaranang Legal Advocacy Centre (TLAC). Her research and political interests include gender, Pan-Africanism, feminism, geopolitics in the Middle East and public policy. Dr. Ruth Murambadoro is an avid scholar on gender, governance, peace and security. She is serving as a senior lecturer at the School of Governance, University of the Witwatersrand, South Africa where among other roles she coordinates the Research Masters and Doctoral

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programmes of the school. These academic roles inspired her to pursue further studies in the field of education focusing on teaching and learning in higher education. As a trained political scientist with a D.Phil. from the University of Pretoria, she is interested in understanding the intersecting realities that inform human interactions and the role of power in shaping, perpetuating or addressing disparities among population groups. Welekazi Stofile is the Executive Director of Tshwaranang Legal Advocacy Centre to end violence against women (TLAC). She has over twentyseven years of experience working in the human rights sector in Southern and East Africa including South East Asia. She has vast years of experience working in legal research, programme management and training. Her research experience covers broad human rights issues and in particular women’s rights, women’s access to justice as well as violence against women and girls. Her decision to work in the human rights and social justice sectors was informed by her experiences of gender and racial discrimination which she has been experiencing throughout her life as an African woman. She holds a Bachelor of Laws degree. Dr. Cori Wielenga is the acting Director of the Centre for Mediation in Africa and a senior lecturer in the Department of Political Sciences at the University of Pretoria. Her research interest is in the intersection of local, national and international justice and governance systems in Africa. To this end, she has spent time in Rwanda, Burundi, Zimbabwe, Mozambique, Namibia, Nigeria and South Africa to understand the impact of these intersecting systems of justice and governance on people ‘on the ground’.

CHAPTER 1

Introduction: Women’s Roles in Justices Practices in Southern Africa Cori Wielenga

Opening Remarks In this volume, we are interested in justice ‘on the ground’ in Southern African communities, and in particular in the roles that women play in this process. When we speak of justice on the ground, we refer to the ways in which justice needs are met by people in rural and peri-urban communities on a day-to-day basis. Research suggests that between 70 and 90% of justice needs on the African continent and globally are met outside of state-led justice systems (Chirayath et al. 2006). This is certainly the

The author would like to thank Sarah Matshaka for her research assistance in preparing this chapter, particularly in relation to the section on gender in an African context. The author would also like to thank Dr Bosco Bae for his critical reading of this chapter as well as Chapter 2. C. Wielenga (B) Centre for Mediation in Africa, Department of Political Sciences, University of Pretoria, Pretoria, South Africa e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 C. Wielenga (ed.), African Feminisms and Women in the Context of Justice in Southern Africa, https://doi.org/10.1007/978-3-030-82128-9_1

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case in Southern Africa, but there is limited understanding of justice on the ground, and instead, many assumptions and generalisations are made about these practices. Justice on the ground includes family courts, community courts, the interventions of traditional and community leaders in resolving conflicts, and state-influenced interventions at the local level. We also include the general perspectives of how people understand justice and meet their justice needs. This is quite different, we have found, from how we understand justice within national and international justice systems. Typically, in ‘the West’ the long tradition of justice led to the RomanDutch system of law, which centres on the contract between the state and the individual. Contrary to this, justice practised by communities in Southern Africa centres on the contract which people have with one another. Some have called this ‘connective’ or ‘relational’ justice (Granes 2017), thereby giving particular emphasis to the fact that what is prioritised is the relationship between people, and the complex set of relational networks that hold a community together. In rural and periurban communities, the network of relationships between people and the well-being and health of a community as an integral whole continues to be of central importance, as the survival of the community depends on the entire community functioning interdependently. These networks or webs of relationships are not only between people, but also point to the cosmological or metaphysical. They include the relationships between the living, the not-yet-living and the living dead (Benyera 2014). Some would even include the relationship with the ecological (Murove 2004). The intrinsic importance of the intersection of the physical and metaphysical is most visible in the cleansing rituals that characterise most African systems of justice (see, e.g., Baines 2010). Even if a conflict between individuals is resolved through the formal state system, on returning to their community individuals may need to engage in a cleansing ritual that involves the whole community in the cosmological sense (Allen 2007; Baines 2010; Masoga 1999; Honwana 1997). In this regard, justice means more than simply the resolution of conflict, but has to do with the well-being of the community as a whole. As Honwana (1997: 297) describes in the Mozambican context: If the relationships between human beings and their ancestors, between them and the environment, and among themselves are balanced and

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harmonious, health ensues. However, if they are disrupted in any way, the well-being of the community is jeopardised. There is a complex set of rules and practices that govern the maintenance of well-being and fecundity in the community.

Of particular interest in this volume is the role of women in justice. This is important since it is often assumed that justice practices on the ground are patriarchal, and they are often dismissed for this reason. However, as shown in this volume, our findings suggest that in many cases women are centrally involved in justice practices on the ground. Of course, patriarchal practices can be found in most world systems. Similarly, in the evolving systems of justice in Southern African communities, one may find evidence of patriarchy along with evidence of attempts to address this issue as these systems evolve. Yet one of the questions that needs to be asked is what we mean by patriarchy, and in particular, whether patriarchy has the same meaning in a rural Southern African community as it does in, say, an urban centre in Europe or North America. One of the themes explored in this introduction is African feminism and African approaches to understanding gender dynamics. Our encounters in rural and peri-urban communities across Southern Africa suggest that, as is the case elsewhere in the world, gender dynamics are complex and difficult to understand at a mere glance. Where in some instances, on the surface, governance, leadership and justice systems seem to be male-dominated (e.g. if we were to count the number of men, as opposed to women, who hold positions of leadership), in reality men and women intervene in the community in a variety of ways. In other instances, a mere numerical count would suggest that men and women hold equivalent positions of power, but this doesn’t necessarily mean that there is ‘gender equality’. Questions regarding the meaning of gender equality abound in gender debates, but what seems most urgent is to understand what this means from the perspective of a given community and not necessarily through the lens of Western feminist scholarship. Feminist scholars have already gone far in questioning the ways in which gender is understood predominantly from a Western perspective. For example, in the late 1980s Mohanty (1988: 63) critiqued the “cross-culturally singular, monolithic notion of patriarchy or male dominance” which “leads to the construction of a similarly reductive and homogenous notion” of what she calls the

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“‘third-world difference’ - that stable, ahistorical something that apparently oppresses most (if not all) of the women in these countries”. She specifically critiques the idea that all women form a homogenous group of ‘sisters’ engaged in the same struggle, that women should be essentially defined as victims of male violence, and that women should be seen as universal dependents rather than as active agents in their own lives. In this Introduction, we will explore the role of women in justice on the ground from the starting point of the lived experiences of women, and in the intersections of race, class, culture and the colonial experience. In the case discussions in this volume, which include Namibia, Zimbabwe and Mozambique, we attempt as far as possible to avoid the use of the term ‘gender’ and related terms, in order to enable descriptions of the roles of women in justice on the ground to emerge on their own terms without framing it within a particular gendered discourse. However, in this introductory chapter, and the chapter that follows, we explore our understanding of gender dynamics, and the role and position of women in Southern Africa within our discussion of justice on the ground.

Continuities, Discontinuities, Tradition and Modernity Often, justice practices on the ground, particularly those which directly relate to resolving conflict, such as community courts, are described as ‘traditional’. We avoid this term, firstly because the term ‘traditional’ comes with baggage, and secondly, because justice practices on the ground, although based in tradition, have evolved and adapted so much that they sometimes have only a loose relationship with the historical traditions on which they are based. In some of our previous writings, we have referred to these practices as being tradition-based, emphasising the fact that they are based on traditions, but are not necessarily traditional. However, we found that this still tended to lead to associating such practices with historical traditions, rather than reflecting the dynamic nature of justice practices on the ground. We also considered using the term ‘indigenous justice systems’ in order to relate our work to the emerging interest in indigenous knowledge systems. The concern here was that this term also has a great deal of baggage, because it implies that some knowledge systems (such as those

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from the West) are universal, whereas others are ‘indigenous’, meaning strange, particular and context specific. Some writers have used the term ‘alternative’ to describe justice practices on the ground, but since such practices are utilised by the majority of the people in the countries that we discuss in this book, it made no sense for us to call them alternative. They are in fact the main means of meeting justice needs. For most people in these countries, the state-led system is in fact an alternative system which they might turn to when they have exhausted all other means of meeting their justice needs. Part of this discussion leads us to the debate about tradition and modernity. There are assumptions that justice on the ground is ‘backward’ or undemocratic (Ntsebeza 2004). Perhaps in some instances, the assumption is that in order to ‘modernise’ and become part of the twentyfirst century, what is needed is to strengthen the state and its systems, and ensure that state-led governance and justice systems have a wider reach. In this scenario, there should be a functional magistrate’s court in every small village across Southern Africa. Yet what we have found in villages across Southern Africa is that even where a magistrate’s court and a local municipality function optimally (and this is seldom the case in rural and peri-urban Southern Africa), many day-to-day needs of the community are still not addressed. For example, in the cases of Namibia, Zimbabwe and Mozambique discussed in this book, justice practices on the ground often address conflicts within the home or disagreements between community members before they can escalate into direct violence. Justice on the ground deals not only with the ‘technical’ aspects of governance and justice which the magistrate’s court and local authority aspire to provide, but also more broadly with the relational well-being of the community which is critical to its functioning. What we identify here is a fundamental difference in the norms and values which underlie different systems of practice. For a long time (and perhaps still today), the norms, values and practices of such local communities were seen as ‘backward’ or ‘primitive’, and the values and practices of ‘the West’ were seen as ‘modern’, embodying something to which communities should aspire. Although this position is rarely presented in the literature today (or certainly not in such a blunt way), it continues to influence perspectives on the ground. This was, for example, evident in our conversations with some people at the Magistrate’s Court in Omaruru, that serves Okombahe community in Namibia, who were

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immediately dismissive of the traditional court and its ability to provide justice. Much has been written about Africa in relation to ‘modernity’, and terms such as ‘multiple modernities’ and ‘alternative modernities’ have been used in an attempt to question the notion that the ‘modern’ found its zenith in Europe, while Africa embodied all things ‘primitive’, ‘savage’ and ‘dark’ (see, e.g., Ashcroft 2009; Ferguson 2005). The emergence of the terms ‘alternative modernities’ and ‘multiple modernities’ speaks to attempts to broaden the definition of ‘modernity’ beyond its European origins to encapsulate the complex ways in which ‘modern’ societies across the globe have emerged, influencing and shaping one another (Hassan 2010). Comaroff defines ‘African alternative modernities’ as signs, practices and dispositions that, while having originated in African encounters with ‘elsewheres’, are always negotiable and constantly in the making (Comaroff 2002). More radically, decolonial scholars argue that ‘western modernity’ is presented as a ‘rhetoric of salvation’ and hides the other side of its coin, coloniality, with its logic of oppression and exploitation (Mignolo 2007). The decolonial scholarship speaks of a ‘colonial matrix of power’ through which the logic of colonialism continues to shape and influence the way we understand and encounter the world today. As Grosfoguel (2007: 220) writes, Coloniality allow us to understand the continuity of colonial forms of domination after the end of colonial administrations, produced by colonial cultures and structures in the modern/colonial capitalist/patriarchal world-system. ‘Coloniality of power’ refers to a crucial structuring process in the modern/colonial world-system that articulates peripheral locations in the international division of labor with the global racial/ethnic hierarchy and Third World migrants’ inscription in the racial/ethnic hierarchy of metropolitan global cities. In this sense, there is a periphery outside and inside the core zones and there is a core inside and outside the peripheral regions.

The communities engaged with in this volume are on the periphery, outside of the ‘core zones’, where their knowledge systems and ways of being are hardly seen, let alone understood or respected. If we accept the argument by decolonial scholars that there are pluriversal perspectives, histories, knowledge systems and modernities that hold equal importance, it changes the position of justice practices on the ground, where they have

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emerged from and what significance they hold within societies and within political orders. What is practised on the ground today reflects some continuity with the past, as well as much discontinuity. Many of these practices have a very long history. At the same time, there have been many disruptions to the way in which communities in Southern Africa function. Slavery, colonialism, apartheid (in South Africa and Namibia) and Christianity are only some of the many influences that have distorted and changed knowledge and justice systems in these contexts. Batley (2020), drawing on Faris (2014) and Rist et al. (2011), advocates for the concept of endogenous knowledge, which he describes as “a process of social construction carried out by a community that interacts on the basis of a shared worldview, that is, symbolic representations, epistemology, norms and values, and practices” and argues that: Scientific knowledge, instead of representing a universal product of the highest cognitive development of humanity that allows humanity to get rid of ‘indigenous beliefs’ expressed in idolatry, superstition, and illunderstood relations between nature and society, becomes just one – albeit important – form of knowledge among others.

The idea of endogenous knowledge systems speaks to the resilient ways in which communities engage with the coming together of multiple knowledge systems, and economic, political and socio-cultural realities. This has become evident to us through the ways in which communities have adopted (and continually adapted) ‘endogenous’ systems of practices to meet their justice needs.

Justice on the Ground The prevalence of informal justice systems is recognised all over the world. Chirayath et al. (2006: 2) state that “even in societies with the most developed legal system, only about 5% of legal disputes end up in court”. We are particularly interested in how informal justice systems manifest themselves in the African context. Our findings and the research literature suggest that there are certain conceptions of personhood that are central to African ways of being which have implications for justice practices. These conceptions of personhood are characterised as relational, and communities are understood as

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composed of complex networks of relationships. Englund and Nyamnjoh (2004: 9) describe how in post-colonial African states people accommodate multiple identities and speak of a “relational aesthetic of recognition”. Rather than recognising distinct communities of difference, they suggest that instead we recognise the relationships that unite groups of people. We should acknowledge these relations not merely as aspects inserted into communities after they emerge, but as intrinsic to the very emergence of such communities. As previously mentioned, networks or webs of relationships are not only between people, but also point to the cosmological or metaphysical, including the relationships between the living, the not-yet-living and the living dead. Metaphysical aspects of justice on the ground are reflected in the rituals practised in many communities across Southern Africa, although in some contexts, these are no longer practised. In some contexts, such rituals have taken on the flavour of their religious context. In parts of North and West Africa, there is evidence of the influence of Islam on such practices. In Southern Africa what is evident is the influence of Christianity in the form of Catholicism and Pentecostalism and, in the case of Namibia, of Lutheranism. What are fundamental to justice practices on the ground are the authorities which are the custodians of such practices. The role of these traditional authorities and their ability to facilitate justice practices have been compromised to some extent by the colonial experience, which has undermined the authenticity, legitimacy and moral authority of traditional authorities. During colonialism, some African traditional authorities constituted proxy institutions of colonial rule, insofar as chiefs provided an avenue for furthering the economic and political interests of the colonial powers and of ensuring indirect rule of indigenous people (Logan 2013; Ndlovu and Dube 2012). Such traditional leaders were seen as having betrayed their communities, especially those engaged in struggles for liberation (Mamdani 1996). The dilemma that traditional leaders faced was that refusal to comply with colonial powers could mean being ousted from leadership or the destruction of their authority (Ndlovu and Dube 2012). Complicity or subjugation contributed to the transformation of traditional leadership institutions. However, some chiefs continued to exert social, cultural and political control over communities within the newly defined territorial jurisdictions marked out by colonial powers (Nshimbi 2017).

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As Nshimbi (2017) writes, one would expect such ‘sell-out’ traditional leaders who had been exploited by colonial powers to be deposed in the context of post-independence. Instead, they have “artfully reinvented themselves in the interim and have discovered a variety of methods to reclaim their authority” (LiPuma and Koelble 2009: 206). Traditional authorities have survived by deploying various strategies, including shifting alliances and reinventing themselves in cultural, ideological and economic ways (Nshimbi 2017). In contrast with much recent literature, Logan (2013: 353), who draws on data collected in 19 African countries, finds that although Africans describe traditional leaders as flawed, they “enjoy widespread popular legitimacy”. In response to the argument that traditional authorities have remained resilient only because of weak states, Logan (2013: 373) suggests that they are highly valued and desired by their communities for what they represent, and that they do not depend on the backing of the state for their survival. In fact, she suggests that state actors need traditional authorities to secure their own popular support. She writes: Their character as leaders, flawed as it may be, and their connection with and accessibility to the people in their communities, set them apart from politicians and government officials. They are more available as problem solvers, and they have the advantages of local knowledge and an understanding of community norms and practices that can make them effective in resolving local conflict.

It is important to note that when traditional authorities have lost their legitimacy, community members may take it upon themselves to implement rituals or conflict resolution mechanisms. Baines (2007), for example, recounts that in northern Uganda, where local systems were disrupted by conflict, “the neutrality and capacity of elders and cultural leaders to adapt local approaches to crimes committed during the conflict” were limited. Yet, her findings suggest that in such situations other members of the community might initiate cleansing rituals to put their ‘worlds in order’ through traditional healers and spirit mediums (Baines 2007: 97). It is not only traditional authorities that oversee justice practices on the ground, though. Others involved in facilitating justice practices on the ground include faith-based leaders, spirit mediums, traditional healers and diviners (Honwana 1997). Oftentimes, as is evident from our own

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research in Namibia, Zimbabwe and Mozambique, it is women’s group, women leaders or a matriarch in the family who initiate an intervention or play a central role in justice practices in the ground. States continue to be limited in terms of their reach and resources, making it impossible to dismantle altogether systems of traditional authority. Thus, as described earlier, to differing degrees attempts have been made to integrate traditional authorities into the formal state system. However, the relationship between traditional authorities and government authorities at district level has remained complex. There is often a confusing overlap between functions and jurisdictions, and they derive their legitimacy from different sources. This confusing overlap is perhaps evident in the difficulty of defining whether an area is urban or rural, and the jurisdiction under which it falls. Mobility between urban and rural spaces is characteristic of most African societies, to the extent that some argue that we need to interrogate what notions of ‘urban’ and ‘rural’ mean altogether (Nyamnjoh and Brudvig 2014). Although urban areas are defined principally in terms of population density and the availability or absence of various public services, which areas ‘count’ as urban and which do not has been disputed globally. In addition, borders of urban areas have becoming increasingly unclear, particularly as large numbers of people commute into urban centres from the periphery, or even more as settlements develop on the outskirts of urban centres and provide the workforce to sustain the urban centre. Increasingly these areas are being referred to as ‘peri-urban’, suggesting the blurred distinction between urban and rural (Tacoli 1998). Tacoli (1998) points out that when people migrate from rural areas into urban centres they may nevertheless maintain strong ties with their families ‘back home’. Although in this volume we have focused on periurban and rural communities, many people living in urban centres have a rural ‘home’ to which they return, and where they engage in ‘on the ground’ practices of justice to resolve conflicts and restore balance.

The Role of Women in Justice on the Ground One of our first findings arising from time spent in Namibia, South Africa, Zimbabwe and Mozambique is that there are many actors involved in meeting a community’s justice needs, including traditional authorities such as chiefs, headsmen and women, traditional healers, diviners, community leaders, faith healers, religious leaders and political leaders.

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Some twenty years after Becker (2006) undertook his research on gender discourses in rural Namibian communities, we visited similar communities to explore the roles which women play in conflict resolution as a means of gaining insight into the gendered nature of traditional leadership and management of conflict. There is often an assumption that traditional leadership is ‘essentially patriarchal’. However, what Becker’s work shows is that the evolution of gender discourses in these communities is complex and dynamic. His study engages with four diverse communities in north, south, east and west Namibia and illustrates the ways in which global, national and local dynamics intersect to influence how gender is understood. For example, he shows how in some contexts, women’s leadership roles were undermined and, in some cases, completely discontinued, as a result of colonialism and Christianity. He discusses the subsequent ways in which global and national gender politics have influenced local realities, and also how local actors themselves have continued to reinvent ‘traditions’ and ‘customs’. Becker (2006: 48) argues that rural women and men produce local, gendered modernities: … the re-making of local gender discourses and practices testifies to the ability of chiefs and ordinary rural people alike continually to reinvent the political and judicial institutions in their communities. The recent gender politics of traditional authorities, in their various forms, are a product of local agency; they are a reaction to exogenous forces while building on local forms and histories.

Important to note here is the dialectic between exogenous forces and local agency. As our findings in communities in Namibia, Zimbabwe and Mozambique reveal, women on the ground are active agents in shaping their communities. The South African case also included in this volume focuses less on the roles played by women, and more on the ways in which the traditional courts system in South Africa is utilised by women.

A Note on Our Methods This volume builds on a project commissioned by the Centre for Sexualities, Aids and Gender in 2018, in order to contribute to their ongoing work with non-governmental organisations in Southern Africa around the topic of gender justice. Our team was drawn from researchers who had experience in undertaking research in rural and peri-urban southern

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African contexts and had an established interest in the role of women in governance, health and justice systems. Although we draw from multiple cases on the continent, the intention is not to offer a comparative study, per se, as much as to provide a thick description of a phenomenon in multiple contexts in order to explore it further. In this instance, we were interested in the role of women in ‘justice on the ground’ and were interested in testing assumptions related to equality, patriarchy and agency. Through fieldwork visits, observation and interviews undertaken between 2017 and 2019, which built on already-established relationships with the communities engaged, we sought to tell the story of what we saw and heard. Specifically, we engaged with communities in the Erongo region of Namibia, the Mudzi District in Zimbabwe and the Boane area of Mozambique. In each case, we attempted to speak to a range of people directly involved in ‘justice on the ground’, as well as those involved in the formal justice and governance systems where they intersect with community practices (e.g. people at the magistrate’s court). We also attempted to observe community court hearings and speak to those who have brought their conflicts to the community courts. We sought to avoid the extremes of both universalism and culturalism, claiming neither that there are factors that can be generalised across cases, nor that each case is so unique and particular that no generalisation whatsoever can be made. We believe there are certain factors that are similar enough across cases that they allow us to ask important questions about the assumptions, worldviews, policies and practices that guide justice ‘on the ground’.

Introducing the Chapters The case study chapters are preceded by a chapter on African feminisms, which attempts to situate our discussion within the context of feminist scholarship more broadly. A concern in African feminist scholarship is how to ‘read’ the African experience through an African lens, which often means ‘unlearning’ other lenses which have dominated for so long. A lazy interpretation of gender dynamics on the continent has often resulted in the stereotyping and demonising of many practices that continue to hold deep resonance with many (southern) African societies, particularly in peri-urban and rural settings.

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The other temptation is to romanticise these practices and offer a defence of them, but this does as much of a disservice to them. The fact of the matter is that these practices are ‘other’ to most of the readers of this kind of scholarship (although increasingly, this is not necessarily the case, as more people who locate themselves on the continent, and intentionally hold onto their heritage, engage in scholarship). For this reason, these practices often require explanation and contextualising in the face of dominant narratives that have rendered their meaning obscure, exotic and, perhaps the worst possible categorisation, undemocratic and, in effect, anti everything we apparently stand for in the ‘free world’. But from what position do we ‘explain’ and contextualise these practices? And who gets to do this ‘explaining’ and contextualising? Decolonial and (decolonial) feminist scholars increasingly insist that it needs to be from within; people speaking for themselves, as far as is possible (Mignolo 2007; Grosfoguel 2007). We fall short of this high ideal, in this volume. Each author does, however, attempt in their own way to tell the story as honestly as they can, with the intention to describe justice on the ground as accurately as possible, without too much editorialising. In other words, the story is told with relatively little analysis. What we hope is that the stories themselves offer, in the context of the broader discussion on African feminisms and justice practices ‘on the ground’, is something that will help us to move beyond the dominant interpretations of these practices. What these ‘beyond’ interpretations are, we’re still grappling with, and are perhaps not ours to concretise. We hope simply to contribute to opening the conversation up a little more. In the chapter which is situated in a Damara village in the Erongo region of Namibia, the authors have attempted to do this by telling the story of a community court hearing about insults between family members. A small matter, perhaps, although as the authors point out, in a community in which everyone lives interdependently for their survival, it could quickly become a crisis that affects everyone. They further tell the story of what women are doing in a range of contexts in that community, such that women are not only “the support that enables various structures to function, but they are also concerned social actors who take on community development initiatives, mediate conflicts and serve as drivers and leaders of justice on the ground. In other words, ‘justice’ is not confined to any single space, but also occurs within and between them”. This is followed by a chapter on a community in the Mudzi District of Zimbabwe, where the author tells the story of a case of infidelity, which is

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escalated from the family court, to the village court, to the chief’s court. What is evident is that gender dynamics are complex, and the binaries of “home/world, spiritual/material, feminine/masculine” (Schiwy 2007) begin to unravel. Where does the family end and the ‘world’ begin? How do we understand justice when the spiritual and material converge in the everyday? This chapter questions what our underlying assumptions are as we engage with the difficult questions about gender and justice on the ground. The chapter about the Gueguegue community in Mozambique takes this even further in its engagement with idioms and proverbs that capture the ways in which people experience gender roles in relation to justice practices on the ground. Idioms and proverbs are increasingly being understood to play a central role in accessing indigenous knowledge systems (Mvanyashe 2019). Some have written about the links between the use of idioms, culture and identity, and that it is through idioms and proverbs that indigenous knowledge has been preserved and can be understood (Kaya and Seleti 2013). Using proverbs and idioms to understand cultural phenomenon is tricky, as there are instances where they have been used to both positively and negatively explain gender dynamics, as will be discussed further in Chapter 2. What is evident from this chapter is that women play a central role at almost every level of justice practices on the ground, and that these practices often centre around the ways in which the extended family operates within the broader community structures. The South African chapter stands apart from the others in that it doesn’t investigate the role of women in justice on the ground in a particular community, but rather engages with a particularly gendered issue that appears before traditional courts in South Africa. This is the issue of customary marriage and its accompanying ritual of lobolo, and more particularly, the dissolution of customary marriage. The authors of this chapter point out that despite claims that the traditional courts system is patriarchal, women in rural and peri-urban contexts continue to choose to make use of it. For this reason, the reform of specific practices needs to be considered in order to ensure that the court system is more inclusive. They recommend the reform of customary marriage and its dissolution as it is dealt with by the traditional courts. This chapter points to the ways in which we can engage with the traditional courts system and justice practices on the ground in order to support women better, without necessarily dismissing the traditional court system or customary law in its entirety.

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What all the chapters point to is that women have agency and are active players in their own lives and communities. They further offer rich descriptions of what this agency looks like in everyday life, in relation to justice on the ground. What they don’t do, is offer an analysis of what all this means in terms of how men and women relate, or understand their roles, or how power is defined within these societies. We hope that by asking the questions and problematising the issues, we do enough to contribute to opening up the conversation.

Concluding Remarks The chapters in this volume attempt to give the reader glimpses into the lived experiences of community members in rural and peri-urban communities, and to describe how these communities meet their own justice needs. The intention of this undertaking is not to ‘exoticise’ such communities or to point to their peculiarity, but rather to normalise, to show how people function in the everyday. When we propose intervening in or assisting these communities—whether as researchers, staff members of non-governmental organisations or government officials—the driving purpose should not be ‘What can we bring?’ but rather ‘What can we learn?’ We would argue in this vein that any intervention in a peri-urban or rural community should necessarily begin with the training of the ‘outsider’ regarding how the community meets its day-to-day needs. One of the reasons why justice practices on the ground are so rarely acknowledged in their own right is because of the way the existing hierarchies of knowledge systems continue to shape the way we perceive the world (Grosfoguel 2007). Kaya and Seleti (2013) address the critique that “promoters of African indigenous knowledge have not been able to provide a clear definition and conceptualisation of their own as to what constitutes “knowledge”” in saying that part of the problem is that the holistic nature and approach of African ways of knowing and knowledge production has been misunderstood. To return to justice practices on the ground, one can only understand these if one understands how the ‘social contract’ functions in rural and peri-urban contexts. The social contract is not between people and the state, but between people with one another. The way society is organised is fundamentally relational. If we want to contribute to meeting justice needs, our starting point needs to be a deep understanding of how justice is practised, the identities of the people involved, and how

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community dynamics contribute to maintenance of balance and harmony in the network of relationships that characterise these communities. As we visited different communities—in the Erongo region of Namibia, in Mashonaland, Zimbabwe, and in the Boane area of Mozambique—we become aware that the resources within communities are plentiful. They are often constrained, however, by the fact that they remain unrecognised or are not perceived to be legitimate. We also become aware that justice is far broader than simply resolution of conflict; rather, it involves the well-being of the entire cosmological community. Finally, we become aware that women play a central role in maintaining such well-being, and that their roles need to be well understood and on their own terms if we are to engage meaningfully in helping meeting justice needs in these contexts.

References Allen, T. 2007. The International Criminal Court and the invention of traditional justice in Northern Uganda. Politique Africaine 3 (107): 208. Ashcroft, B. 2009. Alternative modernities: Globalization and the post-colonial. A Review of International English Literature 40 (1). Baines, E. 2007. The haunting of Alice: Local approaches to justice and reconciliation in Northern Uganda. International Journal of Transitional Justice 1 (1): 91–114. Baines, E. 2010. Spirits and social reconstruction after mass violence: Rethinking transitional justice. African Affairs 109 (436): 409–430. Batley, M. 2020. Integrating practice and policy: An example from South Africa. In Justice during transitions: Policies that reflect African realities, ed. C. Wielenga and C.C. Nshimbi. Dakar: Codesria. Becker, H. 2006. ‘New things after independence’: Gender and traditional authorities in postcolonial Namibia. Journal of Southern African Studies 32 (1): 29–48. Benyera, E. 2014. Exploring Zimbabwe’s traditional transitional justice mechanisms. Journal of Social Science 41 (3): 335–344. Chirayath, L., C. Sage, and M. Woolcock. 2006. Customary law and policy reform: Engaging with the plurality of justice systems. Background paper for the World Development Report 2006: Equity and Development, 1–31. Comaroff, J. 2002. Governmentality, Materiality, Legality, Modernity: On the Colonial State in Africa. In African Modernities: Entangled Meanings in Current Debate‚ ed. J.-G. Deutsch, P. Probst and H. Schmidt. Portsmouth, 130. NH: Heinemann.

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Englund, H., and F. Nyamnjoh. 2004. Rights and the politics of recognition. London: Zed Books. Faris, J. 2014. Editorial comment: Focus on the San community of Platfontein: Generating the knowledge of a First Nation people for dispute resolution. Journal for Transdisciplinary Research in Southern Africa 10 (4): iii–iv. Ferguson, J. 2005. Decomposing modernity: History and hierarchy after development. In Postcolonial studies and beyond, ed. A. Loomba, S. Kaul, and A.M. Burton, 166–181. Durham: Duke University Press. Graness, A. 2017. Concepts of justice in Africa: Past and present. InThemes, issues and problems in African philosophy, ed. I.E. Ukpokolo. Cham, Switzerland: Palgrave Macmillan. Grosfoguel, R. 2007. The epistemic decolonial turn. Cultural Studies 21 (2–3): 211–223. Hassan, S.M. 2010. African modernism: Beyond alternative modernities discourse. South Atlantic Quarterly 109: 451–473. Honwana, A.M. 1997. Healing for peace: Traditional healers and post-war reconstruction in Southern Mozambique. Journal of Peace Psychology 3 (3): 293–305. Kaya, H.O., and Y.N. Seleti. 2013. African indigenous knowledge systems and relevance of higher education in South Africa. The International Education Journal: Comparative Perspectives 12 (1): 30–44. LiPuma, E., and T.A. Koelble. 2009. Deliberative democracy and the politics of traditional leadership in South Africa: A case of despotic domination or democratic deliberation? Journal of Contemporary African Studies 27 (2): 201–223. Logan, C. 2013. The roots of resilience: Exploring popular support for African traditional authorities. African Affairs 112 (448): 353–376. Mamdani, M. 1996. Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism. Cape Town: David Phillip. Masoga, M.A. 1999. Seeds of violence and vengeance: South Africa and symbolic ritual cleansing. Affiliations 6 (1): 213–224. Mignolo, W.D. 2007. Introduction. Cultural Studies 21 (2–3): 155–167. Mohanty, C.T. 1988. Under western eyes: Feminist scholarship and colonial discourses. Feminist Review 30: 61–88. Murove, M.F. 2004. An African commitment to ecological conservation: The Shona concepts of ukama and ubuntu. Mankind Quarterly 45 (2): 195–215. Mvanyashe, Andiswa. 2019. IsiXhosa Proverbs and idioms as a reflection of indigenous knowledge systems and an education tool. Southern African Journal for Folklore Studies 29 (2). Ndlovu, M., and N. Dube. 2012. Analysis of the relevance of traditional leaders and the evolution of traditional leadership in Zimbabwe: A case study of

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amaNdebele. International Journal of African Renaissance Studies—Multi-, Inter- and Transdisciplinarity 7 (1): 50–72. Nshimbi, C.C. 2017. Life in the fringes: Economic and sociocultural practices in the Zambia-Malawi-Mozambique borderlands in comparative perspective. Journal of Borderlands Studies: 1–24. Ntsebeza, L. 2004. Democratic decentralisation and traditional authority: Dilemmas of land administration in rural South Africa. The European Journal of Development Research 16 (1): 71–89. Nyamnjoh, F., and I. Brudvig. 2014. Conviviality and the boundaries of citizenship in Africa. In The Routledge handbook of cities of the south, ed. S. Oldfield and S. Parnell. Abingdon and New York: Routledge. Rist, S., et al. 2011. Endogenous knowledge: Implications for sustainable development. In Research for sustainable development: Foundations, experiences, and perspectives, ed. U. Wiesmann and H. Hurni. Perspectives of the Swiss National Centre of Competence in Research (NCCR) NorthSouth, University of Bern, Vol. 6, 119–146. Bern, Switzerland: Geographica Bernensia. Schiwy, F. 2007. Decolonization and the question of subjectivity. Cultural Studies 21 (2–3): 271–294. Tacoli, C. 1998. Rural-urban interactions: A guide to the literature. Environment and Urbanisation 10 (1): 147–166.

CHAPTER 2

African Feminisms and Justice on the Ground Cori Wielenga

Opening Remarks Justice on the ground is often critiqued for being male-dominated and ‘patriarchal’. This is an assumption that we want to unpack and problematise in this chapter, and through the case studies in this volume. There is the tendency to either demonise and romanticise community practices ‘on the ground’, but in this volume we attempt, as far as possible, to ‘tell the story’ on its own terms. Justice on the ground is often inextricably related to the institution of traditional leadership, and this too is often assumed to be an institution that is oppressive of women. Interestingly, drawing on Afrobarometer data, Logan (2013: 370) states, “Although it is often assumed that traditional leadership institutions are inherently bad for women, women themselves do not appear to see it this way”. She questions whether this is true because women in such contexts are themselves ‘conservative’, or whether they simply experience traditional leadership as being both familiar and beneficial. C. Wielenga (B) Centre for Mediation in Africa, University of Pretoria, Pretoria, South Africa e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 C. Wielenga (ed.), African Feminisms and Women in the Context of Justice in Southern Africa, https://doi.org/10.1007/978-3-030-82128-9_2

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As is the case universally, women’s power in decision making differs from community to community, and this is also true in relation to the institution of traditional leadership (Mengisteab 2007). Murambadoro in this volume describes a community in Zimbabwe that follows a matrilineal line, and there are examples of this across the continent. Furthermore, it is apparent that even within patrilineal lines women wield power in a variety of complex ways, to greater and lesser degrees. What we want to explore in this chapter is the danger of ‘cultural imposition’, where we ‘read’ (southern) African realities through a particular (predominantly, western) lens. This has been a growing concern of scholars working in the areas of decoloniality and feminisms and has led to a retheorising of race, global inequalities, gender and power (Mohanty 1988; Schiwy 2007; Soetan 2001). Some of these scholars argue that women may have more leverage, control and autonomy than is evident at first glance. Women notably head up households, co-ordinate finances, delegate tasks and manage small household agricultural holdings (Soetan 2001). But beyond this, women also wield political power. Many have written about the socially constructed nature of gender (Nyamu-Musembi 2007; Schiwy 2007), but it remains a contested concept in African scholarship, with some dismissing it as ‘Eurocentric’ and others saying that the very idea of ‘gender equality’ doesn’t make sense in an African context (Nyamu-Musembi 2007). Schiwy (2007: 275) argues that ‘gender’ is an historical and social category which appears to differ across geopolitical boundaries. She goes on to argue that “when debates about gender abstract from the colonial making of social relations (among women, among ethnicities and classes), they risk perpetuating colonial relations”. She adds that “in the context of global coloniality both race and gender are concepts which interact, coalescing into gender specific forms of oppression and meshing longstanding imaginaries in order to justify hierarchies of subjectivity, economic and political as well as epistemic orders associated with these subjectivities”. Nyamu-Musembi (2007, drawing on the work of Steady 2002) suggests that there are three common assumptions about gender politics which African scholars have critiqued. The first of these is the notion of the ‘universal subordination of women’, which ignores the intersectionality of gender with race, ethnicity, class and religion. The second assumption made is with regard to a separation between the public and the private spheres, and the assumption that men enjoy privileged participation in the public sphere. This view marginalises the ways in which

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women “draw power from family, religious systems or female secret societies, or provide evidence that women’s public participation can vary depending on lifecycle, with older women serving as elders in some communities”. The third assumption is that gender should be used to critique the hierarchies and differentiation of roles within the nuclear family, whereas the “isolated nuclear family is not the dominant family form in the African and other non-Western contexts”. Also, “‘power centres’ are diffused through other kinship categories, which may be based on age, seniority or distinctions between those born into the family and those marrying into it”. Engaging with such assumptions is of particular interest for this volume, since our case studies reveal the complex and organic ways in which women have power and influence in relation to justice on the ground which may not be immediately obvious. Significantly, for example, in the (southern) African context women have always provided for their (extended) families, playing critical roles in agriculture and farming, planting and harvesting the crops which ensured the survival of families and communities. Thus, the struggle to give women the right to work that emerged in the global north in the early twentieth century takes on a different nuance in an African rural context.1 African feminist discourses perhaps have in common that they seek to differentiate themselves from western feminisms. Whereas this initially may have been to define themselves in resistance to western feminisms, increasingly this has been in more pro-active ways (Lewis 2001). Gqola (2001: 11) speaks of how ‘black women-centric spaces’ are “no longer just concerned with writing back - to white feminists, to colonialism, to patriarchy, to apartheid, etc. - but are about refashioning the world in exciting ways where the difference within is not a threat but a source of energy”. It’s interesting bringing feminism into this volume, as this volume doesn’t necessarily have feminist concerns. It is barely even concerned with gender (understood as power), in the strictest sense. It is interested in bringing attention to women in the everyday practice of justice

1 This is not to say that in today’s world, women and men on the continent have equal access to the labour market, protected work environments (women in southern Africa are more likely to work in precarious forms of employment) or receive equal pay. It is rather to point to the different trajectories and concerns of women in different geographical locations at different times in history.

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on the ground. At the same time, it inevitably is about these things, as it is concerned with the way in which justice on the ground is often perceived to be ‘patriarchal’ or essentially oppressive to women. These claims are made, we (the contributors to this volume) believe without a deep understanding of the roles that women in fact play. This is not to say that justice on the ground isn’t as patriarchal or oppressive to women as any other system or institution in the world. But simply labelling justice on the ground as being one thing or another, misses the dynamic movement of these practices and misses the many ways in which women do exert agency and have voice (as mentioned in the introductory chapter to this volume). So perhaps an engagement with African feminisms is helpful in providing us with a number of lenses, or simply questions, through which to read the cases discussed in this volume. As already mentioned in the introductory chapter, we don’t attempt to offer an analysis of these cases, or a comparison of them, through a particular theoretical lens but rather attempt, through them, to show some of the ways in which women participate (or even are at the forefront, in many instances) in engaging with justice on the ground. The discussion on African feminisms provides a context through which we do this. There are strands of African feminist thought that prefer not to be identified as ‘feminist’ at all and other strands that are more comfortable with situating themselves within this framework. But all these strands inevitably are concerned with the intersection of race, location/geography and gender, and in one way or another, with our colonial legacy, even where they attempt to ‘look forward’ rather than grapple with the past. Some strands of African feminism are concerned with drawing from indigenous knowledge systems as a starting point for defining a uniquely African feminist sensibility. With regard to the latter, Catherine Obianuju Acholonu’s motherism, coined in 1995, is an example of this, together with Obioma Nnaemeka’s nego-feminism and Akachi Ezeigbo’s stiwanism, among others. These frameworks have received a lot of criticism but depict the attempt to draw from the lived experience of African (often rural) women as a starting point for theory building. These frameworks, their critique and what they offer our discussion on justice on the ground will be discussed further in this chapter on African feminisms. Lewis (2001) differentiates this from the ‘Women in Development’ discourse which emphasises the need for women to increase their “productivity in relation to national and global economies” which she sees as

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placing “enormous burdens on African women and ultimately promotes the agendas of international capitalism and patriarchy”. Even though Lewis (2001) and others (Nkealah 2016; Matandela 2020) are uncomfortable with African feminist positions that emphasise motherhood, what does seem to characterise many African feminisms is the idea that a range of binaries need to be brought into question, including the binary between the private realm of the home and the public space of politics (Koyana 2001), between theory and practice (Gqola 2001), between the spiritual and material (Schiwy 2007) and even between the feminine and masculine (Schiwy 2007). This overthrowing of binaries leads to a completely different feminist sensibility. It is this ‘different feminist sensibility’, situated in the African context, that this chapter attempts to bring to light. It does this by starting with a very brief discussion of western feminisms (cognisant of the problematic of having this as a starting point), followed by an exploration of another ‘feminism’ in the global south, Indigenous feminism which has emerged out of South America. From here, the discussion returns to African feminisms, exploring attempts at developing feminist thought out of ‘indigenous knowledge systems’ and the critiques thereof, then on to womanism and the ways in which African feminisms attempt to capture something of the way in which lived experiences of people on (at least, some parts of) the continent transcend the binaries that characterise so much of western feminisms. The chapter ends with a few closing remarks and a reflection on what the questions we need to be asking are in order to read the case studies in this volume on their own terms.

A Note on Western Feminisms Much has been written on western feminisms, and here the attempt is simply to offer a very brief overview in order to help situate the discussion on Indigenous, and African feminisms. The fact that ‘other’ feminisms are even described here (and many times elsewhere) as ‘other’ and need to be situated in relation to western feminism is of course part of the very problem that ‘other’ feminisms are often concerned with. As Smith (2011) states, although we don’t need to negate the contributions made by western feminists, we do need to “de-center them from our historicizing and analysis”. On the other hand, it is a dialectic, and as feminisms from around the globe (each with arguably, similarly long histories) have come into contact

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with one another, they have given shape to the direction different feminisms have taken. As Smith (2011) neatly summarises (in a critical analysis of the ways in which feminisms in the global north were indifferent to women of colour until the ‘third wave’), In the United States, the first wave is characterized by the suffragette movement; the second wave is characterized by the formation of the National Organization for Women, abortion rights politics, and the fight for the Equal Rights Amendments. Suddenly, during the third wave of feminism, women of colour make an appearance to transform feminism into a multicultural movement.

A discussion of the differences between second- and third-wave feminism(s) is worth engaging in briefly, as it brings important characteristics of these feminisms to light. Second Wave Feminism, which can perhaps be characterised by Carol Gilligan’s ‘In a Different Voice’, published in 1982, emphasises gender difference, differentiating between the male orientation—the ‘autonomous self’ operating in an hierarchical world with rules according to abstract principles of fairness, versus the female orientation— a ‘connected self’, joined to others in a web of relationships. Relational dynamics, not rules, are central in this orientation. “Thus, according to Gilligan, women tend to conceptualize moral questions as problems of care involving empathy and compassion, while men conceptualize them as problems of rights” (Dobson et al. 2018). The critique with this ‘wave’ of feminism has been that it positions women as “victims of a system that was calibrated toward a male sensibility; i.e., the autonomous self” (Dobson et al. 2018). Further, it depicts women as essentially ‘softer’ and more compassionate. Clearly, this ‘second-wave’ narrative of female victim-hood leads naturally to the advocacy of government intervention and protection. Whether in the context of women’s pay or women’s participation in business, the ‘playing field’ needed to be leveled, and government intervention – in the form of regulation and quotas – was a means to leveling it. (Dobson et al. 2018)

Far more acceptable in the scholarship today is, of course, the idea that any difference between men and women is due to socialisation and does not reflect ‘essential’ traits. Yet Gilligan’s ideas still hold traction and traces of it can be found in the scholarship on feminism and the ethics of

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care, for example. Botes (2000) describes an ethics of care to be based on an approach in which involvement, harmonious relations and the needs of others are taken into consideration when making an ethical decision, and not only an impartial engagement with “universal principles and rules”. An ‘ethics of care’ approach continues to be applied widely, and Robinson et al. advocate it as a means to provide the moral and political language feminism needs in order to resist the instrumentalisation of the feminist agenda in governance and policy environments (Robinson et al. 2015). Nevertheless, there was a shift from second- to third-wave feminism in the 1990s, in relation to issues around transgender identities and race. The focus moved from gender difference to gender equality. Here the concern has been with the differences between women on the basis of race, economics, ethnicity, religion, etc., and the idea that one person can hold multiple identities. Gone is the notion that there are shared characteristics common to all women, which unify them as a group. The third wave argues that such universalizing claims about women are always false, and function oppressively to normalize particular – socially and culturally privileged – forms of feminine experience. (Dobson et al. 2018)

Third-wave feminism is interested in the transformation of the structures and systems that underpin inequalities in society, rather than fighting for the right of women to participate equally in an oppressive society. Dobson et al. (2018) write, “Third wave feminism becomes ‘feminism without women’ in the sense of a rejection of the feminine binary; the focus becomes one of power relations between traditionally excluded groups. The third wave is in essence a will to collective, equally distributed, yet individually directed, power”. Third-wave feminism(s) resonate with feminisms in the global south, which are typically also concerned with the systems and structures of oppression that lead to inequality. Perhaps what would distinguish feminisms in the global south and north, among other factors, is the fact that the roots of the oppressive systems and structures by feminists in the global south are identified to lie with colonialism, imperialism and white supremacy (of course, some feminisms in the global north also recognise this; other are significantly more ‘conservative’).

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Learning from South America: Indigenous Feminism The feminist movements and scholarship in the global south have taken their own trajectory. For example, in South America, the emergence of ‘indigenous feminism’, which operates in the intersection of being ‘Native’ and woman, has a distinctly different history to that of Western feminism. Smith (2011) writes that “if we were to recognize the agency of indigenous women in an account of feminist history, we might begin with 1492 when Native women collectively resisted colonization”. Indigenous feminism is necessarily concerned with patriarchy, white supremacy, colonialism and imperialism (Dulfano 2017; Smith 2011) as the oppression of women in this context is seen as being related to the very project of the nation-state and statebuilding, and what Smith (2011) describes as the heteropatriarchy which allows social elites to rule “everyone else … through domination, violence, and control”. The continued marginalisation of Native peoples in South America, the United States and Canada is part of what has led Indigenous feminists to question the very nature of the nation-state, and pose questions about what appropriate forms of governance are (Smith 2011). Smith (2011) argues that “Whereas nation-states are governed through domination and coercion, indigenous sovereignty and nationhood is predicated on interrelatedness and responsibility”. This relates to the fact that Indigenous feminism is concerned with “the interrogation of the legitimacy of Western knowledge, as the singular and sole way of knowing” (Dulfano 2017). Dulfano (2017) writes, Their [indigenous feminists] postulations are not just a matter of rearranging social power hierarchies to include women at the top, but a radical and alternative challenge to the structural sources of gender domination in capitalist, globalized society. Therefore, they understand keenly the fact that their gender and ethnicity is always functioning in relation to other realms of oppression including epistemological and physical violence; psychological colonization of the mind; state, corporate and development aggression; racism; poverty; non-native linguistic exclusivity; environmental destruction; and a lack of health and food security.

Much of this resonates with debates within African feminisms. What is also familiar is the claim by some that ‘Native women’ can’t be feminists. Smith (2011) writes, “Supposedly, feminism is not needed [in Native

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communities] because Native women were treated with respect prior to colonisation. Thus, any Native woman who calls herself a feminist is often condemned as being ‘white’.” Yet in reality, she found that Native women community activists were describing themselves as ‘feminists without apology’. Another claim that Smith (2011) encountered during her years of antiviolence organising was that: “We can’t worry about domestic violence; we must worry about survival issues first”. But again, on the ground, the experiences of women were that survival and domestic violence were very much intertwined. Further, challenging patriarchy within their communities was not only a ‘local’ concern but was found to be “fundamentally linked to white supremacy and colonialism”. However, she points out that even in Native circles, “the Native response to a heteronormative white, Christian America has often been an equally heteronormative Native nationalism” in the name of “Indian tradition”. Similar trends can be seen on the African continent and beg questions about the end to which ‘indigenous knowledge’ is used. Is it used to further exclusionary or inclusionary agendas? What is then the ‘original’ or ‘authentic’ intention of these knowledge bases, or is that a question that can’t really be asked? For example, even though Native ‘traditions’ are referred to support a ‘conservative’ agenda, Smith (2011) also brings attention to Native ceremonies as a source of knowledge about the ways in which a Native feminist politics seeks to ‘transform the world’: A Native feminist politics seeks to do more than simply elevate Native women’s status — it seeks to transform the world through indigenous forms of governance that can be beneficial to everyone. At the 2005 World Liberation Theology Forum held in Porto Alegre, Brazil, indigenous peoples from Bolivia stated that they know another world is possible because they see that world whenever they do their ceremonies. Native ceremonies can be a place where the present, past and future become copresent. This is what Native Hawaiian scholar Manu Meyer calls a racial remembering of the future.

This description of Native ceremonies and connecting with a “racial remembering of the future” resonates strongly with lived experiences in southern Africa and is discussed particularly in Ruth Murambadoro’s chapter on the Mudzi District of Zimbabwe in this volume.

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It is noteworthy that Indigenous feminists draw explicit links between their spirituality, the worldview that emerges from this spirituality and the implications of these for political systems of governance.2 As Sharon Venne (in Smith 2011) explains, Our spirituality and our responsibilities define our duties. We understand the concept of sovereignty as woven through a fabric that encompasses our spirituality and responsibility. This is a cyclical view of sovereignty, incorporating it into our traditional philosophy and view of our responsibilities. It differs greatly from the concept of Western sovereignty which is based upon absolute power. For us absolute power is in the Creator and the natural order of all living things; not only in human beings… Our sovereignty is related to our connections to the earth and is inherent.

In our case studies, on the one hand, what we’re engaged with exists at a very local level: how people in rural and peri-urban communities meet their justice needs, and where women can be found in this. But these justice practices on the ground exist within far larger structures of justice and governance. Women in these contexts often experience oppression not only because of local dynamics, but also because of the ways in which police stations, Magistrates’ courts, Gender offices, local officials in municipal structures and so on operate and interact with justice on the ground. To expand the view further, justice on the ground operates according to particular worldviews that prioritise relationality and human dignity. But justice on the ground exists within a larger system of state justice and governance which operates according to a completely different worldview which is often marginilising and undermining of the very beliefs and values that allow a rural or peri-urban community to survive, or, at best, flourish. Thus local concerns of women and justice are most certainly also global concerns of the systems of justice and governance that shape them.

African Feminisms, Then In defining what makes African feminisms ‘African’, inevitably the discussion arises of who ‘counts’ as an African feminist scholar, with so many voices in this conversation emerging from the diaspora. Lewis (2001)

2 Of course, this was also the case in ‘the west’, where, historically, Christianity has shaped the political systems of governance and justice that are dominant today.

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suggests that regardless of where women who identify as African feminists are writing from, “What these feminists have in common is a shared intellectual commitment to critiquing gender and imperialism coupled with a collective focus on a continental identity shaped by particular relations of subordination in the world economy and global social and cultural practices”. In this regard, we see resonance with the Indigenous feminism of South America. The discussion in this section begins with exploring African feminisms that draw from indigenous knowledge as this is perhaps closest to our own interest in justice on the ground—how to understand and situate justice practices in the lived experience of rural and peri-urban communities. It then engages with the African feminisms that are more concerned with overcoming the binaries presented by, to use the words of Gqola (2001, 12), “white supremist capitalist patriarchal logic”. Finally, it explores the ‘pro-active’ directions that African feminist thought is moving in. None of this is applied directly to the cases discussed in this volume. Questions remain as to how we understand the experiences of women in Omaruru, Mudzi District or Gueguegue in the light of this discussion of African feminisms. But at the end of the chapter, some reflections about these questions are offered, centrally in terms of what needs to be forefronted when engaging with justice practices on the ground in terms of concerns about gender (power) and the position of women. Motherism and the Quest for an ‘Authentic’ African Sensibility Coulibaly (2015) traces various forms of African feminist thought through a study of African literature. She identifies six strands that capture the ways in which African feminists have attempted to establish an “African feminist theory which neither duplicates or imitates Western feminist views nor radically subverts African social values and hierarchies”. Nego-feminism, for example, suggests that women challenge patriarchy through negotiation and compromise, and know how to negotiate with or about patriarchy in different contexts (Nnaemeka 2003). Similarly, snail-sense feminism is about African women’s ‘clever’ uses of negotiation and diplomacy in patriarchal systems of socialisation to assert and affirm their self-actualisation and empowerment. The feminist scholar Akachi Ezeigbo, who developed this term, uses the analogy of how a snail withdraws into its shell for safety whenever danger threatens, hence providing a parallel to the ways in which women may similarly withdraw

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from harsh patriarchal cultures into spaces which provide greater safety. Such ‘withdrawal’ by women may take the form of accommodating men or tolerating their behaviour, as well as co-operating with men. Snail-sense feminism is about carefully negotiating what is often treacherous terrain. Motherism primarily focuses on the centrality of motherhood in the African female experience. The contention is that “the life of African women cannot be dissociated from the mother–child love relationship and it is through motherhood that African women can achieve psychological and social freedom” (Coulibaly 2015). In motherism the terms “patrifocality” and “matrifocality” are used to replace the concepts of patriarchy and matriarchy which are deemed to be Western concepts that are removed from African sociocultural realities. Patrifocality and matrifocality can be used to explain the complementarity between men and women in which no gender dominates how society is organised. Catherine Acholonu, the feminist theorist who developed this idea, states that African men are generally dominant in socio-political spheres of African societies whereas “African women dominate the spiritual and metaphysical segments”. In their immediate cultural environment, African women “have specific roles related to motherhood, childrearing, spirituality, trade, and the management of the family whereas their husbands are mainly known for politics” (in Coulibaly 2015). Women play roles in the political arena as advisors to their husbands concerning the big issues facing their families and their society. Coulibaly (2015) suggests that in these strands of African feminism, there is an attempt to move beyond men and women as being in opposition to one another, and instead to transcend the idea of gender binaries altogether. Much criticism has arisen in relation to these ‘indigenous’ African feminisms. Nkealah (2016, 64), for example, describes these frameworks as being ‘exclusionary’ in a number of ways. It excludes women who have not chosen to identify with motherhood, who are urban, and even those who fall outside of West Africa, as these frameworks have been developed largely by Nigerian women scholars, or women scholars of Nigerian descent. More than this, using Ancholonu’s (1995, in Nkealah 2016) words, Nkealah shows how the rural woman has been idealised: to the position of a “saviour” in her role as a farm worker and food producer. This rural woman is “the answer to the ever-increasing demand

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for food”, making her the “economic, agricultural, political, commercial and labour base of every nation”. At the same time, the rural woman gives and nurtures life, provides it with spiritual nourishment, and imparts to it the ancient wisdom it needs to survive. She is “the living personification of the earth and all her rich blessings of love, patience, knowledge, strength, abundance, life and spirituality. (quotations from Ancholonu 1995)

Where motherism attempts to “advocate partnerships between women and men in alleviating the devastating effects of colonialism on African peoples” (Nkealah 2016), it does this by marginalising those who don’t identify with this ideal rural woman, such as “modern, educated, economically independent, and assertive urban women” and those who identify as lesbian or transgendered. It in fact dismisses lesbian politics altogether, creating new binaries and exclusions. Nkealah (2016) asks who the ‘African’ woman then is that these theories encompass. As Dosekun (2019) writes: While there is a consensus that African feminisms must be attuned and responsive to the conditions of African women’s lives, a central point of contention concerns the nature and status therein of ‘culture’ and ‘tradition,’ and what some deem essential and irreducible African difference. The chapter argues against even weakly essentialist theoretical accounts of African feminisms, above all because these presume an authentic African female subject of concern, and thus exclude others who do not fit the mould. A view of Africa as the contextual rather than essential ground of African feminisms allows instead for the emergence of a feminist politics for all African women in their immense diversity.

This points to the difficulty of accessing ‘the African’ through, for example, proverbs and idioms, which can be read either as affirming of a particular identity or, in fact, affirming of problematic gender relations in a given society. For example, where Nnaemeka (2003: 380, in Nkealah) draws on Igbo, Sotho, Ashanti and Yoruba proverbs and idioms in order to develop her ideas of ‘nego-feminism’, according to Okoth (2020) in a study of gender in Kikuyuland, Kenya, “most Kikuyu proverbs encourage male domination and oppression of women. Women and their presumed characteristics are negatively presented, while men are positively presented”. Similarly, according to Nasong’o and Ayot (2007), “the language of the Luo (Kenya) dirges portrays a male-centered worldview,

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which devalues or excludes female perceptions, critique, and contributions”. The Kenyan proverbs and idioms referred to in these studies resonate with those referred to in the Zimbabwean and Mozambican case studies in this volume, as well as those used by Nnaemeka. Are they, then, sources of indigenous knowledge that can allow us to develop new ways of understanding an ‘African’ feminist sensibility, or do they simply reflect the patriarchal worldview inherent in these societies? Perhaps a more helpful African feminist sensibility is that of womanism. Womanism Womanism finds its origins in the writings of Alice Walker who defined it as any “black feminist or feminist of color committed to the survival and wholeness of an entire people, both male and female” (Rodgers 2017). It was further ‘politicised’ by the Nigerian writer Chikwenye Okonjo Ogunyemi (Koyana 2001). Konyana (2001) writes, “Womanism incorporates the well-being of men who are also victims of the world power structure that subjugates black people as a whole”. This feminist sensibility is characterised by being family—rather than female-centred. They are not just concerned with the question of internal redistribution of resources, but of their generation and control; not just equal opportunity between men and women, but the creation of opportunity itself; not only the position of women in society, but the position of societies in which Third World women find themselves. (Cheryl Johnson-Odim 1991: 320, in Konyana 2001).

The resonance of this with motherism, stiwanism, snail-sense feminism and nego-feminism is apparent. However, within the womanist discourse, attempts are made to engage with the actual rather than ideal lived experience of a broad range of women. Konyana (2001), in her discussion of Sindiwe Magona’s autobiographical writings, for example, asserts the political nature of being a single mother in an (South) African context, multiple interconnections between the household and the political economy as a result of migrant labour and long commutes as a result of living on the margins of urban centres, and women’s double oppression in the home and in the workplace.

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This clearly moves beyond the idealising of the ‘African’ woman and her position in society but at the same time holds onto the idea that it is the family—men and women, together—who have been wounded by systems of oppression, and who need to be restored. In this way, womanism is an example of the ways in which the binaries spoken of in the introduction to this chapter, between the private and the public, the spiritual and the material, the masculine and feminine, are bridged or integrated. Huff et al. (2018) point to a number of principles in ‘African philosophy’ that shed some light on the way African ‘ways of being’ might turn western feminist binaries and concerns on their head. Being fully cognisant of the problems inherent in talking of ‘African philosophy’ (is there really a homogenous ‘African’ way of being in the world, etc.), Huff et al.’s discussion, applied to the realm of occupational therapy, may be helpful. The first principle they identify is that of ‘situationality’: “Instead of a static, dichotomized categorisation based on one’s biological sex, situationality high-lights gender as a fluid construct dependent on context, where men and women are not positioned at opposite ends of a gender binary”. Situationality has to do with connectivity, and “how groups interact with and intuit their social links to others”. They offer the example of how in some East African contexts, daughters can become an ‘honorary son’ if the family has no other male-born children, illustrating how females can shift to a traditional male role if needed”. They further cite the example of how, “in rural Tanzania, economically powerful older women without children become a ‘husband’ by marrying a younger woman of child-bearing age to cohabitate and collectively mother the off-spring”. Greene (1998) suggests that instances of ‘woman-marriage’ have been recorded in over 40 pre-colonial African societies and was evident in relation to both the marriage of an economically powerful woman to secure a second ‘wife’ and in order to augment kinship ties. There is anecdotal evidence that this continues to be practices in communities across (southern) Africa. As Huff et al. (2018) point out, “This [gender role] shift is often in response to patriarchal expectations and gender norms relating to women’s roles and reproduction versus sexual orientation” but “illustrate that gender can be malleable and dynamic according to coexisting sociocultural, political, and economic contexts”. The second ‘principle’ that Huff et al. (2018) point to is that of ‘holism’ and here they put forward the argument that.

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the bifurcation of paid versus unpaid occupations … contains underlying assumptions reinforced by sociocultural values of productivity. Embedded within these assumptions is the implicit undervaluing of unpaid occupations, such as mothering. Mothering from a Western lens is often viewed as a role or one singular dimension of womanhood, instead of as holistic and relational to being a woman.

This would mean that “productive occupations are not the only means for women’s empowerment”. The third principle, which Huff et al. (2018) call ‘collectivity’ and suggest speak to the ‘African’ value of community, where the harmony of the group may supersede the interests of an individual, has implications for how we understand the idea of work, employment and ‘occupation’, and again, what would be perceived to be empowering. The fact that a woman may play a contributing role to the advancement of the community as a whole, perhaps at the expense of her own advancement, may not have the same meaning in a rural, southern African context as it does elsewhere. These are just some suggestions of where a womanist, or non-binaried way of thinking about gender might take us. They open up possibilities in terms of how we interpret the lived experiences of others. They remind us that it is only through the intentional destabilising of dominant narratives, lenses and interpretations that we can begin to understand gender dynamics on their own terms.

Closing Remarks Ogundipe-Leslie (in Gqola 2001) poetically writes, “Are African women voiceless or do we fail to look for their voices where we may find them, in the sites and forms which these voices are uttered?”. What this volume attempts to do is to bring attention to the voices, and the actions, of women in relation to justice on the ground. At a glance, it might be assumed that justice systems based on customary practices are maledominated, but a more careful engagement shows the ways in which women are involved in every aspect of justice on the ground. But seeing this requires that we understand ‘justice’ not as an object that is granted in a particular space but as a “relational and intersubjective value that is that is developed in all spaces, between persons, and requires consistent effort and agency”, as Bosco et al. (2021) describe in Chapter 3 in this volume. As has been reiterated in this chapter, African

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feminist lenses require of us to overthrow the binaries of “home/world, spiritual/material, feminine/masculine” (Schiwy 2007). This is also in relation to how justice is understood, as holistically embedded in every part of community life, as well as part of global structures and systems. Perhaps we can refer to the difficult topic of gender-based violence as a means to explore this further. One of the most prevalent knee-jerk reactions to justice practices on the ground is that they fail to protect women’s rights. In our broad definition of justice on the ground, all activities by women to meet justice needs would be included, and thus there are many examples of where women and men are actively working, often creatively and innovatively, to address gender-based violence in their communities. But even within the more structured community court systems, there is evidence both of the ways, ‘traditionally’ or historically, that these courts have brought about ‘gender justice’ as well as ways in which contemporary iterations of these courts are changing and evolving to become more gender sensitive. Nevertheless, gender-based violence remains high in many of the communities we engaged with and warrant a separate discussion. Perhaps it first needs to be stated that the concern of this book is not gender justice or gender-based violence. It is an exploration of women in the context of justice on the ground. Inevitably, though, a discussion about women and justice takes us to the issue of gender-based violence. The idea that women should centrally be concerned with gender-based violence is a problematic one. Women and men together, and equally, should be concerned with gender-based violence, and it should make no difference whether the judge in a community court is a woman or a man as to whether gender-based violence is addressed fairly or not. A further concern with assuming that gender-based violence is the domain of women is that it assumes that women will necessarily act fairly in the face of instances of domestic violence and violence against women. There is evidence, however, that there are women in leadership positions (globally) that are invested in supporting patriarchal structures for their own interests or because they affirm their beliefs about gender relations. A further complexity is that, as is evident in the communities in Namibia, Zimbabwe and Mozambique discussed in this volume, women may choose to endure domestic abuse for the survival of their family and community. Were a man to be prosecuted for domestic violence, it would potentially mean the loss of the breadwinner of the household, placing the woman and her children in an even more precarious position. For

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this reason, as is described in Chapter 3, cases of domestic violence that were brought to the police or Magistrates’ court by people from Okombahe were often withdrawn again before a prosecution could be made, leading the police and Magistrates’ court to no longer take the reporting of these cases seriously. This, theoretically, places the community court system in a better position to deal with cases of domestic abuse and gender-based violence, as the issue can be resolved without the breadwinner being removed from the family or compromising the financial well-being of the family. In the cases of Zimbabwe and Mozambique, what is described is a community court system that starts at the level of the family. On the one hand, an extended family intervention could mean that the position of the abuser is affirmed (“the wife needed to be reminded of her place”, etc.). On the other, it could mean meaningful intervention where the abuser is held accountable to the elders of the family and ‘kept in line’ as it were by them. The further involvement of religious leaders, the village court and the chief’s court has the similar potential to either lead to the protection of the family members suffering abuse or the abuser. The outcome would largely depend on who the dominant voices (both women and men) are in the justice process. What can be emphasised, though, is that the process would be a fundamentally relational one—it would be about restoring a degree of harmony between all the parties and would not only involve the husband and wife (as the case may be) but the whole family of the husband and the whole family of the wife. In a best-case scenario, the family of the one who is abused would come to their protection and defence. And to continue this scenario, the family of the abuser would come down hard on them as they would have brought shame on the family through their actions. What Bennett (2001) highlights, and cannot and should not be brushed over, is that the intersection of race and gender make Africanbased women (as she specifies) particularly vulnerable to gender-based violence because of several legacies of colonialism (and apartheid). The most obvious is the fact that African women became the object of colonial violence, but more complexly, women may have wanted to hide instances of gender-based violence in order not to undermine the struggle against colonial and imperial forces. Further, many have written about the ways in which colonialism and apartheid emasculated men, distorted power relationships between women and men and contributed to a continued

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violent disruption to gender relations that we still experience today. Further, the migrant labour system, resulting in the absence of men (and, at times, women) from their homes, as well as the vulnerability of many African women in their place of work has further escalated the violent nature of gender relations. Both women and men in these contexts have been described as experiencing powerlessness in a multitude of ways, and when power is manipulated and distorted in one area (that of race) it inevitably affects another (gender) (Snodgrass 2017). This makes gender-based violence necessarily a central concern of African feminisms and a concern of this book. Clearly, though, it is not the burden of rural and peri-urban women, only, to address this. Gender-based violence is the result of local, national and global systems of oppression, including those that continue to marginalise, romanticise and demonise the practices and worldviews of rural and peri-urban communities. This is precisely what African (and South American Indigenous) feminist lenses allow us to see: the ways in which local systems of oppression are necessarily related to global systems of oppression. And that because of the ‘colonial matrix of power’ (Grosfoguel 2007), certain epistemologies and ontologies are privileged over others, so that the very way we understand justice as an ‘outsider’, for example, is so different from how it is understood by an ‘insider’, that we fail to recognise the very ways in which it is unfolding. It is due to the problem with how we ‘see’ and ‘understand’ that we develop and support systems of justice that not only fail to bring about results but in fact undermine the very structures and processes that allow these communities to function. There are instances, globally, where considerable thought is being given to ‘different’ ways of doing things. The work around developing an ‘ethics of care’, for example, based on an approach in which involvement, harmonious relations and the needs of others are taken into consideration when making an ethical decision, and not only an impartial engagement with “universal principles and rules” resonates with understanding justice as a “relational and intersubjective value” (Bae et al. 2021) rather than an ‘object’ that is granted within a specific space. It is this more fluid, organic, relational understanding of justice, that resonates with African feminist concerns, that informs this volume. ‘Reading’ the glimpses of justice practises on the ground that we describe in communities in Namibia, Zimbabwe and Mozambique through this lens will help us to see and recognise the complex and varied roles that women play.

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References Botes, A. 2000. A comparison between the ethics of justice and the ethics of care. Journal of Advanced Nursing 32 (5): 1071–1075. Bennett, J. 2001. ‘Enough lip service!’ Hearing post-colonial experience of gender-based violence. Agenda 16–50: 88–96. https://doi.org/10.1080/ 10130950.2001.9675998. Coulibaly, A.S. 2015. Theorizing and categorizing African feminism within the context of the African female novel. Recherches Africaines 13 (15): 1–23. Dosekun S. 2019. African feminisms. In The Palgrave handbook of African women’s studies, ed. O. Yacob-Haliso and T. Falola. Palgrave Macmillan. Dobson, J., D. Hensley, and M. Rastad. 2018. Toward gender diversity on corporate boards: Evaluating government quotas (EU) versus shareholder resolutions (US) from the perspective of third wave feminism. Philosophy of Management 17: 333–351. Dulfano, I. 2017. Knowing the other/other ways of knowing: Indigenous feminism, testimonial, and anti-globalization street discourse. Arts and Humanities in Higher Education 16 (1): 82–96. Greene, B. 1998. The institution of woman-marriage in Africa: A cross-cultural analysis. Ethnology 37 (4): 395–412. Gqola, P.D. 2001. Ufanele uqavile: Blackwomen, feminisms and postcoloniality in Africa. Agenda 16 (50): 11–22. Grosfoguel, R. 2007. The epistemic decolonial turn. Cultural Studies 21 (2–3): 211–223. Huff, S., D.L. Rudman, L. Magalhães, and E. Lawson. 2018. ‘Africana womanism’: Implications for transformative scholarship in occupational science. Journal of Occupational Science 25 (4): 554–565. Koyana, S. 2001. Womanism and nation-building in Sindiwe Magona’s autobiographies. Agenda 16 (50): 64–70. Lewis, D. 2001. African feminisms. Agenda 16 (50): 4–10. Logan, C. 2013. The roots of resilience: Exploring popular support for African traditional authorities. African Affairs 112 (448): 353–376. Matandela, M. 2020. Introduction: The convergence of patriarchy and democratic roll-back in the East and Horn of Africa. In Challenging Patriarchy: The role of patriarchy in the roll-back of democracy in Africa, ed. Caroline Kioko, Rosebell Kagumire, and Mbalenhle Matandela. Nairobi: Heinrich Böll Stiftung. Mengisteab, K. 2007. Relevance of African traditional institutions of Governance. United Nations. Economic Commission for Africa, Addis Ababa. Accessed: https://repository.uneca.org/handle/10855/3086. Mohanty, C.T. 1988. Under western eyes: Feminist scholarship and colonial discourses. Feminist Review 30: 61–88.

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Nasong’o, S.W., and T.O. Ayot. 2007. Women in Kenya’s politics of transition and democratization. In Kenya: The struggle for democracy, ed. Godwin R. Murung’a and Shadrack W. Nasong’o, 164–196. Dakar: Codesria. Nkealah, N. 2016. (West) African feminisms and their challenges. Journal of Literary Studies 32 (2): 61–74. Nnaemeka, O. 2003. Nego-feminism: Theorizing, practicing, and pruning Africa’s way. Signs: Journal of Women in Culture and Society 29 (2): 357–385. Nyamu-Musembi, C. 2007. Addressing formal and substantive citizenship Gender Justice in Sub-Saharan Africa. Internet: https://sarpn.org/doc uments/d0002823/Formal_substantive_citizenship_Nyamu-Musembi.pdf. Accessed 6 May 2018. Okoth, G.O. 2020.Patriarchy and democracy in Africa: Reflections on the underlying influence of Islamic and indigenous African traditions on women participation in Kenyan politics. The Role of Patriarchy in the Roll-back of Democracy: 87. Robinson, F., D. Engster, and H. Maurice. 2015. Care ethics, political theory, and the future of feminism. Care Ethics and Political Theory: 293–311. Rodgers, S.T. 2017. Womanism and Afrocentricity: Understanding the intersection. Journal of Human Behavior in the Social Environment 27 (1–2): 36–47. Schiwy, F. 2007. Decolonization and the question of subjectivity. Cultural Studies 21 (2–3): 271–294. Smith, A. 2011. Indigenous feminism without apology. Unsettling America Decolonization in Theory and Practice. Available at: www.unsettlingam erica.wordpress.com/2011/09/08/Indigenous-feminism-without-apology. Accessed 15 February 2021. Snodgrass, Lyn. 2017. The sins of the father: Gender-based violence in postApartheid South Africa. Commonwealth Youth and Development 14 (2): 57– 70. Soetan, R.O. 2001. Culture, gender and development. A report submitted to the African Institute for Economic Development and Planning (IDEP), Dakar, Senegal.

CHAPTER 3

Mending Social Relations: A Community Court in a Namibian Village and Extending a Relational Quality of Justice on the Ground Bosco B. Bae, Erika Dahlmanns, Cori Wielenga, and Chenai Matshaka

On a cool Thursday morning, the village of Okombahe slowly awakens and two elderly men arrive at the community court building at 09:40 a.m. Inside a modest assembly room that has seen better days, two women begin setting up the court. At the front, three microphones are placed on a rectangular desk before three chairs. Three signs, printed in block letters on A4 paper, are taped on the wall: ‘Switch off all cellphones’, ‘Silence

Thanks to the Okombahe Community Court Office, Okombahe Traditional Authority Office, Omaruru Magistrate Court, Okombahe Gender Office, the local high school, the Lutheran Church, the Catholic Church, and all the people we spoke to in Okombahe. B. B. Bae (B) · C. Wielenga Centre for Mediation in Africa, Department of Political Sciences, University of Pretoria, Pretoria, South Africa e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 C. Wielenga (ed.), African Feminisms and Women in the Context of Justice in Southern Africa, https://doi.org/10.1007/978-3-030-82128-9_3

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in the court!’, and ‘No eating in court!’. Each sign is accompanied by an Afrikaans translation below it. On the right side of the room, a piece of paper with ‘Defendant’ typed on it is taped on the wall. Two chairs are placed beneath the sign and there is a microphone on another chair in front of them. On the left, beneath a sign with ‘Complainant’ typed on it, a single chair and a microphone are set up. The two elderly men sit down on the ‘Defendant’ side. A few moments later, a middle-aged man arrives and sits on other side. At the front, the two women who were setting up the room (a young clerk and a middle-aged, traditional authority assessor) and another elderly man, a traditional authority and judge, take their seats. The case begins and the complainant proceeds to tell the three authorities his version of events. They sit silently and listen attentively. The clerk diligently transcribes the complaint (an audio recorder is in place as well). She will later translate the transcription into English for official records. The two elderly men are the complainant’s uncles. They are accused of continuous insults, i.e. crimen injuria. After listening to his case, the elderly man asks a few questions to which the complainant replies promptly. With the estimated village population being only 2,500, such insults can carry weight, with potential social and economic ramifications. The case continues in Khoekhoe, the language of the Damara.1 The uncles are given the opportunity to state their defence. Again, the elderly man asks a few questions for each of them. After both sides of the case 1 Okombahe consists primarily of the Damara (}Nûkhoen) people with a minority Herero population. However, the Damara language is not recognised as an official language in Namibia, as are English, Afrikaans, German, Otjiherero, Khoekhoe, Oshiwambo, Kwangali, Setswana and Silozi. The following are recognised regionally: Ju’hoansi, Rumanyo and Thimbukushu.

C. Wielenga e-mail: [email protected] B. B. Bae Department of Religious Studies, University of Lynchburg, VA Lynchburg, USA E. Dahlmanns Philipps-Universität Marburg, Marburg, Germany B. B. Bae · C. Matshaka Institute for Pan-African Thought and Conversation, University of Johannesburg, Johannesburg, South Africa

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have been heard, the elderly man excuses the three men to move to an adjacent room. The two women and the elderly man begin to deliberate. After a period of discussion, they call the two parties back into the assembly room. They rule in favour of the complainant and issue a warning to the defendants. The uncles promptly get up to apologise and shake their nephew’s hand. As they shake, they smile and laugh. The charges against the defendants are their first. No fine is issued and the apology is sufficient. The uncles leave the assembly room with gaiety and the case is over. When the complainant was asked if he was happy with the outcome of the case, he stated “very” and went on to say that instead of going to Omaruru, a neighbouring town, it was “much easier here” in Okombahe. “We are the same people”. What may seem like a trivial matter of insults between family members is a significant one in a small village where insults can lead to altercations and domestic violence. Words are often tied to the representation of self and the words we receive and give can influence our day-to-day activities. In a small village, the intentional impairment of a community member’s dignity (crimen injuria) can carry considerable consequences and public humiliation can motivate unwanted actions, trivial or otherwise. Crimes such as stock theft, housebreaking, theft and assault, which comprise the more significant crimes in the Erongo region, as well as any instances of homicide are reported to the magistrate’s court in Omaruru. However, for the Damara people in Okombahe, access to justice in the magistrate’s court is constrained by proximity and limited transportation. Okombahe is approximately sixty kilometres from the magistrate’s court and the local taxis will usually have one, sometimes two, scheduled transports to Omaruru. In this regard, it is not always practical to take a case to the magistrate’s court. The community court provides an option that is accessible to the people in the village and offers deliberation through the framework of Okombahe’s customary law. The community court addresses a wide range of disputes that emerge within the community: assault; domestic assault between boyfriend and girlfriend, or husband and wife; property theft; stock theft (cattle, goats, donkeys, chickens); arson; adultery; impregnating a girl; inheritance; debt; rape; witchcraft; murder or culpable homicide; and insult that impairs one’s dignity or privacy (crimen injuria). Through the community court, many familial and social relations can be mended before they escalate into more serious matters that will have to be addressed in the magistrate’s court.

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This chapter focuses on women and justice on the ground in the Namibian village of Okombahe. The chapter will first sketch the emergence of community courts and their constitutional legitimation in Namibia. This is then followed by a focus on the village of Okombahe, the Damara people and their community court. For Okombahe, seeking justice within the community court presents a partial picture. In this regard, the community court is akin to the magistrate’s court in presenting justice as an object granted within a designated space. However, justice is more than an object and much more ubiquitous than a court setting. A relational perspective of justice goes beyond the understanding of justice as an object that can be granted and obtained within a particular space. Instead, justice is an intersubjective and inter-relational quality developed, in all spaces, between persons and requires consistent effort and agency. It is in this sense that the women of Okombahe contribute to a sense of fostering, and mending, social relations and cultivating justice on the ground within a greater context of social change. In closing, the chapter addresses civil society organisations in relation to women and justice in Okombahe.

Community Courts in Namibia2 Namibia is characterised by its ethnic heterogeneity. Subsequently, the tradition of community courts and customary law is far from homogenous. Manfred Hinz’s extensive documentation illustrates the wide variety

2 The following chapter is based on fieldwork in 2017 (by two of the authors) and again in March and August of 2018 (by three of the authors). In 2017, two of the coauthors visited three villages (Okombahe, Omatjete, and Uis) in the Erongo region and conducted an exploratory study to ascertain the relevance of the Namibian case in relation to a comparative study of community courts across southern Africa. Each of the courts visited in 2017 had a different history and belonged to a different ethnic community and/or clan. The Erongo region was chosen as the first among further case studies in other regions of Namibia, particularly because literature on the courts in this region is lacking. Moreover, each of the villages had a community court that related to the regional magistrate’s court in Omaruru and further reflected the complexity of integrating tradition-based and state institutions within a quasi-urbanised context and a central region that has been tremendously influenced by colonialism, unlike northern Namibia. Among the three villages, Omatjete was one of the first to install a court after ratification of the community courts law whereas the village of Uis had only recently established its community court. In March and August of 2018, additional fieldwork was completed in Okombahe to collect more data and interview women within the village.

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of customary laws, which was requested by the Namibian government to assist in the law reform process.3 In part, the heterogeneity of Namibia’s customary law is due to the variable degree by which colonialism has affected the myriad of ethnic groups in Namibia. Population groups in the centre of the country, e.g. areas in the vicinity of Windhoek—the current capital—have been under the direct and constant influence of missionaries and colonial rule; Germany from 1884 to 1915 and then South Africa from 1915 to 1989. Regions in the far north and the dry south have been impacted much less. In contrast to the central regions, ethnic groups in the north and south have managed to maintain a relative sense of continuity in their way of living and culture. After the 2000 Traditional Authorities Act, the Community Courts Act of 20034 presented a basic framework for the official recognition and contemporary installation of community courts: “A traditional authority of a traditional community may apply in writing to the Minister for the establishment of a community court in respect of the area of that traditional community”.5 The act allowed for the inauguration of a community court to be recognised by traditional authorities on the basis of a group’s customary law insofar as they were in accordance with the constitution. In other words, community courts require ratification from the state and must operate within the state’s jurisdiction. Certain cases, such as murder, are exempt from being adjudicated within community courts and must be forwarded to the regional magistrate’s court. For Okombahe, the regional magistrate’s court is located in Omaruru. At the time of our research, according to the Deputy Director of Community Courts, thirty-seven community courts have been officially recognised in Namibia. The 2003 Community Courts Act hence opened an avenue for revitalizing and continuing a past practice (prior to Germany’s colonial rule) within most Namibian communities of traditional authorities, such as chiefs or councils, who exercised a central role in conflict resolution. The work of Manfred Hinz was critical in re-introducing and salvaging any continuities of Namibia’s rich and heterogeneous history of customary

3 See Hinz (1997, 2008, 2010). 4 Government Gazette of the Republic of Namibia, Community Courts Act 2003 (Act

No. 10 of 2003), Windhoek, 19 August 2003, No. 3044. 5 Ibid.

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laws. The legislation also provided an avenue for local authorities, which may not have had a pre-colonial heritage, to apply for a community court. In this regard, the installation of community courts across Namibia not only presented a sense of Namibian heritage and traditions, a local and pragmatic avenue of resolving conflict, but also further initiated a process of formally documenting customary laws and their mode of operation within each community.

Okombahe and the Damara Community Court Located in a valley on the Omaruru River, the settlement of Okombahe is regarded as the capital of the Damara (}Nûkhoen which means ‘black people’ in the Damara language). The majority of the people living in Okombahe are Damara but Okombahe is the name of the village in Orjiherero, which is the language of the Herero people. The Damara  - = Gomeb which means ‘wet-side’. A senior name for Okombahe is /A headwoman, also a messenger of the community court, tells a story that when the Damara people were travelling, a dog had found the river and returned to them wet on only one side of the body. This was an indication for the Damara to build their village. Although Okombahe lies on the bank of this river, the village has suffered since the 1990s from severe drought. The village’s subsistence on wheat and cattle has diminished and scarcity has become a cause of conflict. In 2018, water could only be accessed by a pre-paid card from commodified water taps installed around the village. Moreover, there is very little economic activity in Okombahe and the emergent social ills due to a scarcity in resources have become central to Okombahe’s challenges. The Ministry of Urban and Rural Development declared Okombahe a settlement in 2015 and yet, after more than twenty years of lobbying, the promised development of Okombahe has not materialised (Nampa 2015). For the Damara, Okombahe is a place of great cultural significance. The Damara king, David Goreseb (1953–1976), is buried in Okombahe at the Gaob Memorial Stadium. Every year on the anniversary of the King’s death in November, Damara clans around Namibia gather for the King’s Festival. The clans arrive in their traditional regalia and clothes. They discuss the king’s legacy and educate the youth about their customs and cultural practices. The community court is an extension of Damara customs and draws on a long tradition of conflict resolution led by traditional authorities. According to our interlocutors, customary laws of the

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Damara have not changed much and traditional authorities continue to play a central role in the governance of the community. Yet the traditions, customs and rituals have been fading away in Okombahe. In the past, initiation rituals played a central role. Elders within the community recall coming-of-age rituals for women when young women were required to sit in a hut for the duration of their first menstruation. For men, a hunting ritual represented the coming-of-age for young men. However, these rituals no longer exist in Okombahe. The dissipation of such rituals juxtaposed with Okombahe’s cultural significance for the Damara and the community court led by traditional authorities highlight a perennial negotiation between tradition and modernity. The Okombahe community court was established in 2012 and hears approximately seventy cases per year. The court is led by the chief, deputy chief, headmen and headwomen. The court is held in a building, which also houses the court’s office with a full-time clerk, located opposite the memorial stadium for King David Goreseb. Any complainant must first contact the clerk, who documents the cases and invites the accused, by way of court messenger, to court. The clerk may also consult with the deputy chief and traditional authorities to receive their input. After the case has been registered, two judges undertake investigations to secure evidence. In Okombahe, traditional authorities—who collectively constitute the Traditional Authorities Council—deliberate on issues of land and may serve as both headmen/women as well as community court judges. The court deals with an array of cases6 but most often with instances of theft and assault. More severe crimes, as noted above, are referred to the magistrate’s court in Omaruru. The most difficult and complex cases, one judge reflects, are those of land and inheritance.7 Anyone from the community is welcome to attend a court hearing and is offered a chance to share their views. The court usually begins by first hearing the plaintiff and then the defendant’s cases, which are followed by an examination of the evidence. The judges offer advice, make suggestions and intervene in an appropriate manner to resolve the conflict. They may refer to the evidence, customary law or the Bible. One of the judges 6 As noted above, common assault, assault (grievous bodily harm), domestic assault, theft, stock theft, malicious damage to property, arson, adultery, inheritance, debt, rape, witchcraft, murder/culpable homicide, and crimen injuria. 7 It would seem, then, that the Traditional Authorities Council and the Community Court deliberate on different types of land issues and processes.

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explained, in Afrikaans, how people come to the court with tears and together they will talk until they smile again (“Mense kom met die trane in en ons praat tot hulle lag ”8 ). In some cases, the guilty party will be asked to pay compensation. While the new interpretation of customary law has translated ‘compensation’ in terms of monetary value, other forms of compensation are often accepted according to agreement and capacity. At times, incremental payments may be made over an agreed period of time and in other instances, a goat may be offered in lieu of payment. The flexibility with which traditional authorities and judges interpret and implement the provisions outlined in the Customary Court Act is demonstrated by the way in which specific situations of community members are taken into account. For instance, many community members are concerned about an offender obtaining a criminal record or jail time which may become an obstacle for current or future employment opportunities. Moreover, such consequences may also be financially or emotionally detrimental to the family. The community court takes these concerns into account. At the end of a hearing, the conflicting parties come together and apologise; a distinguishing feature that differentiates the community court from the magistrate’s courts. Ultimately, the community court aims to restore a sense of social harmony between parties who will most likely interact with one another in the village. Thus far, the chapter has provided a brief sketch of Namibia’s community courts and the Damara people in the village of Okombahe. However, the brief illustration of the community courts presents a conflict resolution mechanism that is location specific. In other words, the task of mending social relations and deliberating on issues of justice is conducted in a particular space with specified roles and designated positions. Such a view is limited in presenting the greater scope of justice-work that happens on the ground outside of spaces such as the magistrate’s or community court. Justice on the ground is much more pervasive. The community courts in Namibia are relevant and play a significant role for justice on the ground with the view to resolving conflict and amending social relations. The remainder of this chapter argues that the task of resolving conflict and amending social relations is extended beyond the space of the community court in Okombahe and this work is conducted primarily by women.

8 2017 Interview.

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Social Change and the Role of Women in Justice on the Ground According to Margaret Angula (2010), Amongst the Damara the man is defined a “man” as the middle pillar of the house. This is the central pole that holds the house intact. He is the tough tree that can survive long period without water. This implies that a man is strong and can endure hardship and is able to protect his household. The “woman” on the other hand is defined as the foundation and keeper of the house. The Damara further regard a woman as a right-hand of the man.

In 2018, Okombahe is characterised by a high rate of unemployment and poor economic conditions. The river is absent, crops are scarce, and a general sense of social disintegration pervades the community. Although the annual King’s Festival is a reminder of Damara identity and history, the youth are reluctant to participate. Rituals and ceremonies are no longer practised and have diminished importance for the young. Some adults complain that there is “no discipline” and no structure in place to manage the youth in Okombahe. School drop-out rates are high. Local residents and radio personalities note the frequency of knife killings and students bringing knives to school. Some are suspended from school for smoking or drinking and fail to return. Others drop out to work on neighbouring farms. However, many are unable to find employment. Those who are able to complete high school often leave Okombahe to find work in nearby cities such as Swakopmund or Windhoek. Small businesses, such as selling vetkoek 9 and other snacks to school-children, are conspicuous sources of income and pursued primarily by women. A recurring narrative in Okombahe is that fewer men are gainfully employed and many spend their days drinking in local tombo (traditional beer) houses. Although women are also known to drink,10 a general view is that tombo is dominantly a male preoccupation. Men are also often said to be absent from the community because they work on distant farms, leaving women to play increasingly important roles at home and in the

9 A kind of fried dough bread. 10 In one case at the community court, a man accused his wife of neglecting her duties

towards him and his children, as she spent her days at the tombo houses.

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community (Angula 2010). An elderly woman mentions that in “the old days”, the “man made all the decisions because he was the provider and the woman had to respect that”. However, much has changed. Women have also become primary breadwinners and taken on positions of leadership. The Okombahe community cannot be described simply in terms of well-defined roles; these are negotiated on a daily basis by interactions between women and men, and are shaped by both internal and external dynamics. Okombahe, like many communities on the margins of urbanisation, has been affected by changing sociocultural ideas regarding the roles of women and the interactions between women and men. Among other factors, gender dynamics have been shaped by changes in the political landscape. Colonialism, Christianity and the independence of Namibia in 1990 have all had a considerable impact on the relations between men and women (Angula 2010; Becker 2006; LaFont and Hubbard 2007). Moreover, Damara customs and traditions within Namibia’s colonial and apartheid history have woven a complex tapestry regarding gender normative social roles. For example, Damara women, as far as we were able to ascertain, have always been able to own and inherit land. However, prior to the constitutional provision, women were not typically part of the institution of traditional leadership. In other words, despite their capacity to own land, women were excluded from positions of power and leadership. After independence, the country’s constitution recognised the rights of women and the need to promote and protect them. One of our interlocutors highlighted the value of equality between men and women delineated in the Namibian Constitution, post-independence, and stated “It’s now 50–50”. The extent to which these constitutional provisions have been significant in shifting the dynamics between men and women within the community is, however, uncertain. Women continue to face prejudices and biases to different degrees and across various social spheres of participation. Nonetheless, the provision has enabled women to take on formal leadership positions such as chief or headwoman. The women of Okombahe have gone beyond the household and into the broader community to fill vacuums in leadership and provide material resources to community members. It is in this capacity as leaders within the community that women are conspicuously present in fostering and aiming to develop the quality of justice.

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The messenger of the community court, mentioned above, is a grandmother and caretaker of her two-year-old grandson as well as a headwoman of her farms. She is responsible for two farms; other headmen and headwomen may have three or more. She explained that it was the responsibility of the headmen or headwomen to resolve any conflicts on the farm. If a matter cannot be resolved, the conflict may be referred to the deputy chief with the Traditional Authority Office. When asked of any challenges associated with being a woman in this role, she stated: “It’s a bit difficult if you’re a woman; men are very hard-headed. Most of them do listen, but some disrespect you if you’re a woman”. She described an ongoing situation at one of her farms. A man had been misusing the water tap on the farm; a critical resource for all living on the farm and especially for a drought-stricken semi-desert area like Okombahe. She met with the man and others on the farm to discuss the issue and collectively sought to reason with the man and find a way forward. If the issue remained unresolved, she will expel the man from the farm. However, expelling the man would be a last resort, she said, because such a decision would affect his family’s livelihood living on the farm. In this regard, how the headwoman addresses conflict on her own farms are not unlike the considerations taken at the community court. That is, she takes on a relational perspective towards justice and aims to foster a quality of justice across intersubjective spaces with the parties involved. In 2018, Okombahe’s community court office is very much dependent on the diligence and effort of the court messenger, noted above, and the court clerk—a young woman in her mid-twenties—to ensure the court’s day-to-day function. During the day, and throughout the week, they fulfil various duties such as: handling initial reports from complainants, taking cases to the Traditional Authority Office for further discussion, referring cases to the police or relevant stakeholders, informing defendants of the complaint and communicating with the two judges. They set the date for the hearing and ensure that all parties, including the judges, are present at the hearings to participate in deliberations. The clerk is also responsible for recording the hearings and ensuring that monthly reports are sent to the central offices in Windhoek. Although the two judges are men, the court is very much dependent on women. At the Traditional Authority Office, the assessor and secretary of the office—also a headwoman—was at the office daily and engaged with the daily concerns of the community.

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Similarly, the function and efficacy of Okombahe’s Gender Office are contingent on the work of a single woman within the community and across various spaces. The Gender Office is primarily engaged with the distribution and management of child welfare grants as well as the myriad of issues that emerge from them. The most common concern is the abuse of welfare grants by parents. Both fathers and mothers will spend child welfare grants at tombo houses rather than their designated purpose in meeting the basic needs of children. The Gender Office is operated and managed by one woman who is consistently working towards fostering a sense of justice and responsibility in parents and taking better care of their children. When she is unable to instil this quality, she may refer the case to the one social worker who covers the region and frequents Okombahe only a few times a year. In addition to executing the duties of an office or position, within and between formal and informal spaces, the quality of justice is further developed and inscribed in the pursuit of community engagement projects. The woman operating Okombahe’s Gender Office is also in efforts of initiating a youth forum of key stakeholders to support youth empowerment projects. She also speaks of starting a community centre that will offer skills development opportunities for young people in the village. At Okombahe’s Lutheran Church, we met with the pastor’s wife who is also the secretary for the local high school and a women’s leader in the ruling SWAPO party. In addition to her duties at school and church, she has taken initiatives with women in the community to develop a communal vegetable garden, a soup kitchen, and a sewing project. All of the women mentioned above are from Okombahe—unlike some of the men involved in the village, e.g. councillors, headmaster of the high school and clergy for the Catholic and Lutheran Churches who come from outside the village. Amidst the sense of a community struggling to survive conditions of severe drought, Okombahe also carries an awareness of social change and development. The messenger of the court described how Okombahe had changed over the past few decades. She mentioned the lack of public institutions such as clinics, schools or public offices and how, in the past, conflicts were resolved underneath a large tree. The drive for modernization and the development of better infrastructure is highlighted by economic and environmental conditions which have also cultivated a desire for better institutions. With regard to judicial practice, on the one hand, the site for resolving local conflict has shifted and subsumed

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within a greater framework of the magistrate system. On the other hand, for Okombahe’s community court, the emergent quality of justice from such judicial practices is intended to retain a degree of continuity with its Damara traditions and heritage. As mentioned above, the quality of justice emerges from an intersubjective dynamic between persons that is not necessarily location specific. Although the objectification and reification of justice give allowance to the notion that justice occurs in particular spaces, the consideration of justice as an intersubjective quality extends the concept of justice into efforts of women on the ground that enable the incubation of such a relational quality. It is in this regard that justice on the ground can extend to the diligence of resolving conflicts on a farm, maintaining the duties of an office, working with community members, as well as taking initiatives to develop and engage the community.

Closing Remarks Less than 20 years have passed since the passing of Namibia’s Community Court Act of 2003, and less than a decade since the establishment of Okombahe’s community court. And yet, despite such recent legal formalisation, the merits of a community court are evident. Not only does it operate in the local language, but it is run by those who share a cultural and historical background. It also provides context-specific adjudication and sensitivity by authorities who are also concerned with the social ramifications of an offence. Addressing various conflicts on the ground also aims to maintain amicable social relations between community members and mitigates conflict prior to its escalation. The consequences of jail time and a criminal record can have detrimental effects on households that rely heavily on a single individual’s income. Jail time suspends any source of income for the duration of a sentence. A criminal conviction can terminate employment and a criminal record could prevent future employability. The community court prevents such spiralling social and economic consequences. The concern of jail and criminality has been repeatedly voiced in discussions on domestic abuse and violence; a number of such cases have gone to the magistrate’s court in Omaruru. Women who endure abuse share a concern about losing their household’s primary source of income and placing a financial burden on fellow community members. Both the Gender Office in Okombahe and the prosecutor in Omaruru, as well as others, have stated that many women will often withdraw reports of

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domestic violence, out of fear of losing the primary breadwinner, before the accused can be prosecuted. Consequently, the local police no longer take accusations of domestic violence seriously; there have been too many experiences of processing all the paperwork, only to find that the case withdrawn. When this occurs, the surviving party does not receive any compensation or recourse while the offending party continues without a criminal record. In this regard, the community court would seem wellpositioned to engage with cases of domestic violence without the punitive model of the magistrate’s court and its socio-economic consequences. The surviving party may have access to compensation and disciplinary action against the accused, while preventing concern of jail time and a criminal record. Moreover, adjudication by the community court also gives notice to those within the community about individuals with histories of abuse. It is in the community members’ interest to ensure that conflicts, no matter how trivial, are resolved within the community prior to escalation. The issue of domestic violence illustrates the paradoxical position women occupy within Okombahe. On the one hand, they are subject to domestic abuse and are often survivors of it. On the other hand, they are the drivers of ‘justice’, with a greater concern for the well-being of the community. In this sense, they suffer for the household so that their partners may continue to support the family and retain employability. In other words, individual ‘justice’ is sacrificed for familial sustainability and social ‘harmony’. Similarly, the women of Okombahe have positioned themselves in propagating and incubating a relational, intersubjective, quality of ‘justice’ that extends beyond the magistrate’s punitive, individualist model with its legal, social and economic consequences. At first glance, the structure of Okombahe’s community courts and the primacy of the judges’ voices and decisions may give the impression of patriarchy. However, this does not necessarily mean that women’s voices are absent. While we can certainly raise questions about the extent to which women are taken seriously, their continuous and consistent presence within the community court system ensuring its functioning, as well as their presence outside the community court structure, suggests that the

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line between patriarchal and judicial dominance is blurred.11 As exemplified by the women discussed above, the advocacy of justice in Okombahe is more holistic and its relational emphasis further suggests that ‘justice’ is a quality that is developed between intersubjective and structural spaces. Not only are they the support that enables various structures to function, but they are also concerned social actors who take on community development initiatives, mediate conflicts and serve as drivers and leaders in cultivating justice on the ground. In other words, ‘justice’ is not confined to any single space, but also occurs within and between them. Similarly, prejudice and bias can also propagate a form of injustice that seeps into the cracks of Namibian social structures. The notion that community courts are “backward”, “traditional” and “corrupt” is one that can be found in various offices in Omaruru. In other words, there seems to be little indication from many public officials, such as the magistrate’s court and regional government departments, that the community courts are effective or even necessary. Imagined and conditioned conceptions can often colour views of how traditional authorities and community courts operate. Several public officials in Omaruru and Okombahe were unconvinced of the value of local community courts. A relatively new young public official was unaware of the community court’s existence. Another official in Omaruru thought the community courts were backwards and susceptible to corruption. And another official did not think they were helping to reduce crime and violence. None of these public servants, however, had ever been to a community court hearing. That is, there is a bias of imagination and understanding. The community courts are contemporary representations of customary practices and have evolved within particular environmental, social and economic circumstances, as well as in accordance with the histories of the land and its people. The merits of the court, on the one hand, include mitigation of jail time and criminal records in circumstances where 11 On the one hand, this raises further questions about the extent to which the community court structure and customary laws are in themselves patriarchal. The issue becomes whether women are simply upholding the social embeddedness of patriarchy. The same question can be raised with regard to the magistrate’s court system. On the other hand, if the structure in itself is neither patriarchal nor matriarchal, the community court of Okombahe presents a case of blended involvement and operationalisation. Both instances require an investigation into customary law and community court structures and how they are, or are not, ‘patriarchal’, as well as the cultural variance characterising ‘patriarchy’; see footnote 10 (Angula 2010).

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employment and income can be scarce. After years of colonialism, there is also merit in employing a system of conflict resolution through one’s own language and involving local people. In its optimal state, not only does it resolve conflict between parties prior to an escalation in violence, which may require a referral to the magistrate, but it also informs the community of those who are prone to offend again. Moreover, for those cases that require flexibility to achieve resolution, the community court may, upon deliberation, accommodate such instances. It is all too easy to assume what a social structure should be without considering its function on the ground. Such presumptions have fuelled many ineffective top-down approaches to development and hard definitions of justice. Without experience of the environment, its deprivation and the many actors on the ground, especially women, the disparity between deliberations at the top and everyday concerns of lived experiences at the bottom seldom converge. In the case of Okombahe, and of Namibia in general, it is worth building a greater alliance between community courts, magistrate’s court systems and the women that enable them.

References Angula, M. 2010. Gender and climate change: Namibia case study. Cape Town: Heinrich Böll Stiftung. Becker, H. 2006. ‘New things after independence’: Gender and Traditional authorities in postcolonial Namibia. Journal of Southern African Studies 32 (1): 29–48. Hinz, M. 1997. Neither natural death nor suicide—Traditional government in Namibia—Remarks from experience. In Traditional leadership in Southern Africa, 163–176. Johannesburg: Konrad-Adenauer-Stiftung. Hinz, M. 2008. Traditional governance and African customary law: Comparative observations from a Namibian perspective. Human Rights and the Rule of Law in Namibia: 59–87. Hinz, M. 2010. Customary law ascertained. Windhoek: Namibia Scientific Society. LaFont, S., and D. Hubbard. 2007. Unravelling taboos: Gender and sexuality in Namibia. Windhoek: Legal Assistance Centre. Nampa. 2015. Okombahe proclaimed a settlement. https://www.namibian.com. na/index.php?id=139720&page=archive-read.

CHAPTER 4

Creating Social Harmony: Justice on the Ground in Mudzi and Hurungwe Districts, Zimbabwe Ruth Murambadoro

Introduction In 2016, l took part in a community court hearing chaired by one of the local chiefs in Mudzi District, Mashonaland East, a province in Zimbabwe. I attended another similar court hearing in 2018 in Hurungwe District, Mashonaland West Province and established some sense of the ideas and practices that inform justice processes among local communities in Zimbabwe. Mudzi District has a population of 133,252, and it comprises three main ethnic groups; maBudya, maTonga and maToko, which all fall under the Shona group (Zimbabwe National Statistics Agency 2012). Mudzi District is less than 10 km from the Zimbabwe-Mozambique border, along Mozambique’s Tete Corridor. It

R. Murambadoro (B) Wits School of Governance, University of the Witwatersrand, Johannesburg, South Africa e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 C. Wielenga (ed.), African Feminisms and Women in the Context of Justice in Southern Africa, https://doi.org/10.1007/978-3-030-82128-9_4

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is largely rural, but the Nyamapanda border post and growth point area of Kotwa are peri-urban centres, which have electricity and tap water. In contrast, communities on the periphery rely on firewood for cooking, candles for lighting and borehole or stream water for drinking and personal hygiene, and much of the rural population uses a pit toilet or the bush for sanitation. Hurungwe District, like Mudzi, is largely a rural community with a population estimate of 324,000 people, and a small number, 5251 people live in the peri-urban areas (Zimbabwe National Statistics Agency 2012). Magunje is a growth point centre in Hurungwe District, about 35 km from the town of Karoi. It is a popular centre of attraction in the periphery due to the availability of a tarred road network that links it to major towns and cities such as Karoi, Chinhoyi (the provincial capital, which is about 130 km away) and Harare (the state capital, which is 236 km away). The proximity of Hurungwe District to Zambia through the border town of Kariba about 160 km from Karoi makes both Magunje and Karoi transit zones for various commuters within the province and those moving between Zimbabwe and Zambia. The main linguistic dialect spoken by the local community is chiKorekore. My visits to both Mudzi and Hurungwe Districts were arranged through local conveners, who hosted me for over several months while I learned more about how justice occurs on the ground and which parties are involved. In the course of this chapter, the hearing I was able to attend, on an issue of upombwe (infidelity), will be described as an illustration of how justice on the ground unfolds. This case was first brought to the family dare,1 escalated to the village dare and further escalated to the chief’s dare showing the ways in which this system of justice is integrated into various aspects of everyday community life, involving multiple people over an extended period of time. Another case presented in this chapter relates the challenges women encounter in seeking justice through the family court (dare remumhuri).

1 The term dare is the vernacular word for a court, but its use among the community members refers to an assembly where people come to resolve their issues, with family elders, community leaders or traditional authorities mediating or adjudicating the matter. When a dare sitting occurs, all the members of the community, both men and women, are welcome to attend and to participate. A dare is a highly regarded platform for interaction among community members as people regularly gather at the assembly to deliberate and resolve any issues or points of concern.

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In this chapter, l will begin by situating the community courts within the justice systems in Zimbabwe, following which I will examine the place of community courts in everyday life. I will also give an account of how justice is rendered through the dare at the community and family levels. The chapter also discusses challenges faced by women in seeking justice and the centrality of hunhu ethos in fostering justice, after which I will offer some concluding remarks.

Community Courts in Zimbabwe The Constitution of Zimbabwe (2013) recognises that there are two parallel legal systems in Zimbabwe, which fall under the categories of the superior courts (national justice system) and the inferior courts (community-based justice system). The divide between the national and community court systems was created during the colonial era, when the British settlers superimposed a ‘Western’ system of governance onto what already existed among the local communities (Mlambo 2014). Mlambo (2014) argues that after the British settlers had ‘tricked’ King Lobengula into signing the Rudd Concession of 1888, they implemented many other treaties to ensure their occupation of Zimbabwe. For example, through the Royal Charter (1890), the businessman and politician Cecil John Rhodes and his accomplices established a semi-permanent governing structure through the British South Africa Company (BSAC) to manage Southern Rhodesia (present-day Zimbabwe) on behalf of Britain until the 1922 referendum, which established a new colonial government (Mlambo 2014). The Royal Charter gave British settlers legislative, administrative and judicial powers, which enabled the BSAC government (and subsequent regimes) to establish formal laws that, in some instances, co-opted or eroded pre-existing customary laws. For example, a high court was established in Salisbury (present-day Harare) in 1894 to preside over disputes. The Court of Appeals (the Cape Supreme Court) was in the Cape of Good Hope, South Africa. The national court system was comprised of the Magistrates’ Court, the High Court, Supreme Court and the Constitutional Court. A professional judge presided over these courts, which were very procedural and formal because legal representation was required during a court hearing and the Anglo-Roman-Dutch laws were used to reach a verdict. Although the BSAC government established the national court system and utilised English and Roman-Dutch law, the customary laws remained

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in use at the community level, especially by the rural population, because the community structure was made up of people who belonged to the same ancestral family or bloodline. Each community had a chief or family elder who served as a leader of the community in the physical realm, but the community was further connected to the metaphysical realm, comprising the ancestral family (Gelfand 1973). The ancestral family are spirit beings of the departed members of the community, who form a generational pattern of communities that precede the current, living community. The ancestral community (the living dead) serve as a protector and guardian of the ‘living living’ (the people in the physical realm) and intercede for the people to God, who is the creator of all beings, be it in the physical or metaphysical realms (Gelfand 1973; Nyathi 2015). Aside from being the leader of the community, the chief or family elder serves as an arbitrator of justice in the physical realm, which usually occurs through the dare system. As mentioned earlier, a dare is a platform where community members assemble to resolve issues. Many people experienced feeling excluded from the national justice system because of the use of English as the primary language. After independence, the decentralisation of the justice system and the adoption of chiShona and IsiNdebele as official languages among state institutions made the national justice system easier to access for many Zimbabweans. However, they continue to use the technical-legal jargon and discourse used by legal practitioners, which places many people at a disadvantage when seeking recourse through the superior courts. These superior courts have remained largely procedural (e.g. requiring legal representation from a qualified lawyer), and court proceedings are informed by Anglo-RomanDutch laws established during the colonial era (Saki and Chiware 2007). A large proportion of the population in rural areas, who make up over 60% of Zimbabwe’s total population, have remained without access to the national courts, mainly because of exorbitant legal fees, the fact that national courts are usually located far from the homes of many rural people and the fact that cases take so long to conclude, making the process expensive and time-consuming for people from rural communities (Bhebe and Ranger 2001; HZT & ZIMCET 2016). People from places like Mudzi and Hurungwe Districts have been left to rely on the community court system, which interviewees described as a three-tier court (dare) made up of the family court, the village court and the chief’s court. The family dare occurs within the family, while the village court and chief’s courts are usually located at or near the residence

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of the village head or chief. These traditional leaders often reside within reach of the community members, and the community court hearings are guided by the cultural norms and values (tsika nemagariro) of the community that falls under the jurisdiction of customary laws. Community courts are recognised by the government through the Traditional Leaders Act (Chapter 29:17) and customary law (Chapter 7: 05), and they are categorised as inferior courts because they can only preside over civil disputes at the community level (Constitution of Zimbabwe 2013). This means that the dare justice system has limited jurisdiction, only applying to matters enforceable under customary law, which involves cases of a civil nature. Nonetheless, both the chief’s court and the village court often intervene in various disputes affecting their community and can issue lenient or harsh penalties to remedy local conflict. For example, in the case of infidelity, an offender may be compelled to pay a goat or a cow as compensation to an affected party. The case of infidelity examined in this chapter could, therefore, be handled through a dare, because the parties involved chose to follow the community court system, starting within the family, where the tete (aunt) was asked to intervene. When the aunt failed to resolve the matter, she escalated the case to the village head, who subsequently referred it to the chief’s court, where it ended up being resolved by the chief, following custom.

Justice on the Ground and the Place of Community Courts in Everyday Life At the chief’s court, the chief’s council oversees court deliberations. In the community I visited in Mudzi District, the council is comprised of two men and one woman, who serve as advisors to the chief and assessors of matters before the court. Members of the chief’s council are selected from among people of the same clan, as the community structure is formed out of family or clan population groups that have settled within the same area. These family or clan groups are identified using totems: the totem represents the ancestral clan name, which enables the people to identify the family branch to which an individual belongs. Participants in the study shared that each household revers the entity after which their clan is named, and it is from these totemic identities that their chieftaincy is established. For example, the Dziva clan respects water and would not consume any organism that lives in water. The Dziva

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people use the subtitles Save, Musikavanhu, Nyika, Pakuru, Sambiri, Musaigwa and Ganda to refer to their clan name, a practice that has been used for many generations to identify persons. Other totems found among Zimbabweans are Nzou (elephant), Shumba (lion), Moyo (heart), Gumbo (bull’s leg), Ngoma (drum), Nhari, Shava, Nyathi (buffalo), Soko (monkey), Mbizi (zebra), Mbeva (mouse), Mhara, Tembo and Gwai (lamb) (Kwayedza 2014). Within Mudzi and Hurungwe Districts, some of the main totemic clan groupings are Nzou, Tembo, Soko, Gwai and Mhofu. Clan groupings inform the values, ethos and customs of the community which feed into the processes of justice they employ to resolve disputes among themselves. The use of clan names and totems thus shapes constructions of identity and relations that local communities hold, and during my field visits participants indicated that their social arrangements are largely centred around the totemic groupings they belong to. Traditional leaders in the studied communities also represent a specific clan grouping and draw their authority from the totem and household they represent. A totem embodies the moral values and norms (Tsika nemagariro or Imikhuba lenhlalo) that guide families, including choosing local leaders (who are appointed along either patrilineal or matrilineal lines) and marriage partners, as well as regulating many other day-to-day social activities. Clan names have been carried over generations and maintained through interclan marriages and the traditional leadership institutions, a feature that is not only peculiar to rural communities but a familiar practice among most people in Zimbabwe. The village head, headperson and chief are the traditional authorities and custodians of the family or clan name and its heritage, including land, mineral resources and nature. Clan names are often used to demarcate the jurisdiction of each chief within a particular territory, and their mandate is centred around households from within the same grouping. This is why, when a dispute occurs within a family, it is often dealt with by the family elders, who, when they fail, refer it to the village head. The village head can escalate the matter to the headperson and further on to the chief, and through this chain of proceedings, the issue is dealt with within the family because authorities who occupy the ranks of village head, headperson and chief are all members of the same clan grouping. The villages on the Mudzi communal land fall under six chiefs, namely Chief Chikwizo (of the Nzou clan), Chief Mukota (of the Soko clan), Chief Nyakuchena (of the Gwai clan), Chief Nyamukoho (of the

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Nzou clan), Chief Chimukoko (of the Tembo clan) and Chief Goronga (of the Nzou clan). In Hurungwe District, there are eight chieftaincies which are represented by Chief Chundu of Shava Mhofuyomukono clan, Chief Chanetsa of the Nhari Nyamasvisva clan, Chief Mujinga of the Tembo Zvimbakupa clan, Chief Mudzimu is Gumbo Madyirapazhe, Chief Dandawa of the Tembo Zvimbakupa clan, Chief Nematombo is Shumba Nechinanga, Chief Dendera is Nzou Samanyanga and Chief Nyamhunga is Zambu Hwai. The system of chieftaincy is hereditary and predominantly passed on from brother to brother through the patrilineal system within the same clan, except for Chief Chimukoko’s clan in Mudzi District, which is matrilineal and appoints women leaders who are selected by the vadzimu (ancestral spirits). Chief Chimukoko is the only woman chief in the area and possibly the oldest living woman in this rank among the Shona population group; her reign began in the early 1970s when the chief was still a teenager. The community court hearing I attended in Mudzi District was held by Chief Mukota. Before the court session started, all the community members who had gathered for this assembly were invited by the mupurisa wamambo (the chief’s security officer responsible for maintaining peace and order in the court) to enter the courtroom. The gathering was being held in a dilapidated one-roomed building that serves as a pre-school during the week and a dare over the weekends as it gives them shade or coverage from the sun on hot days. In some instances, a dare is held under a tree for communities that do not have infrastructure, which is quite common. Research participants indicated that hosting the dare under a tree has symbolic meaning to them in that branches of the tree resemble diversity, while the trunk which connects the tree to its branches and leaves represents the unity and harmony of the community. As such, they congregate under the tree knowing that they each hold diverse views and are free to bring them forward because the purpose of the dare is to help community members find each other whenever they are in dispute. The dare also serves as a space for engaging on other issues related to the well-being of the community, and they draw on each other to set goals that enable them to attain the common good. On this Sunday morning, two men and a woman had come through to the chief’s dare to resolve a matter of upombwe (infidelity). Before this assembly, one of the men had gathered information about an extramarital affair involving his wife. This man belongs to the African Apostolic

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Church sect (mapositori enguwo chena), and at one of the church gatherings, the couple had gone for prayer with the church intercessors. One of the church prophets prayed for the couple, and during the prayer, the prophet received a message from the Supreme Being, which was conveyed to the couple. As narrated by the complainant, the prophet had revealed that the couple had been having problems in their marriage and the issues needed to be resolved with the assistance of other church leaders. This prophet took the couple to a more secluded space within the confines of the church grounds and called upon other prophets and church elders to pray for them, so that the message could be confirmed by other intercessors. This is a common practice in their religious sect: when a prophet has received a prophetic message, it gains more impetus when other spiritually gifted people within the church can confirm the revelation. Hence, taking the couple aside to pray was a way of giving the people space to allow the Supreme Being to provide similar revelations to the other intercessors. As the revelation came through, intercessors interpreted the prophecy and relayed the message that the woman was carrying a burden that was affecting relations within their marriage. It was revealed that the burden stemmed from an extramarital affair that the woman had had during her husband’s absence from home. The prophets added that the couple needed to find ways to resolve the matter, in order for the woman to be relieved of the shame and guilt she carried, and to remedy any strain on their marriage. The husband was surprised to hear of this revelation but accepted that the affair may have occurred in his absence because his line of work (gold-panning) often took him away from home for long periods of time, which had caused tension in their marriage. After receiving the revelation, the two parties reacted differently to the ordeal. The wife admitted to her involvement with another man during her husband’s absence, but would not divulge the identity of the other man. The husband insisted that acknowledgement of the ordeal was insufficient. For him to move beyond the breakdown of trust in the marriage, he needed to know the identity of the other party and how long the affair had lasted. The church intercessors advised the couple to consult with their families to establish how they could resolve the matter. According to family custom, when an extramarital affair occurs, the couple can take the matter to the family dare, which comprises family elders called tete and sekuru (aunts and uncles), who are relatives of the two parties. These family elders may provide counsel to the parties by inquiring from the

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couple separately what transpired and then facilitating a mediation process whereby the two are brought together with the support of the family elders to resolve the matter and to forge an amicable solution aids them in rebuilding their relationship.

Rendering Justice Through the Dare In the couple’s experience of infidelity, as narrated above, the husband had involved the family dare to resolve the matter. He had first asked his wife’s aunt to engage with his spouse to find out what had transpired. However, the woman declined to confide in her aunt, presumably because she was ashamed of what had occurred. The husband was angry that she wouldn’t share the identity of the man, and this resulted in the couple coming to blows. Since domestic violence had occurred, the matter was escalated by the aunt to the village dare (a local court led by a headperson or village head), in an attempt to remedy the situation. Constitutionally, the traditional leaders have no legal authority to preside in matters involving domestic violence, which are regarded as a criminal offence subject to adjudication by the magistrate’s court. However, as mentioned, accessing the magistrate’s court is difficult for many people in rural communities and most people in Mudzi District would simply turn to the community courts. The village court, therefore, took up the matter and treated it as a civil dispute, since community courts have legal jurisdiction over civil disputes. While the matter was being resolved at the village court, rumours began to spread regarding the identification of the third party, based on the allegedly ‘strange’ relationship that he and the woman had had during the period that her husband was away for work. At the village court the wife was asked about the rumours, and whether the identified person was linked to the prophecy made at the church. The woman broke down and confessed to the whole affair, including how and when it had occurred. She emphasised that the affair had occurred at a time when she and her family were struggling. She apologised to her husband and the family for having taken so long to disclose what had happened. She expressed her fears and concerns, which were mostly that she would be considered an ‘ill-mannered’ person (munhu asina hunhu) for having violated the couple’s dignity. She explained her actions by relating how the absence of her husband had made her feel lonely, and that she had found comfort in the arms of another man in her community, who spoke kindly to her

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and provided her with her basic household needs, which were not being adequately provided for by her absent husband. When it became clear who had been involved with the woman, the headman who facilitated the village court meeting assigned his messenger to call in the other man for a meeting to discuss the matter. The coaccused did not appear for the meeting and all attempts to get him to attend within reasonable time failed. He denied his involvement; this was interpreted as a failure on the part of the offending party to uphold the dignity of the couple, and a disregard for the value of the dare in addressing issues affecting members of the community. The matter was escalated to the chief’s court. When an individual fails to appear before the chief to deliberate on matters that require their full cooperation, a warrant of arrest may be issued by the chief, and this means that the matter is escalated to superior courts within the national justice framework. In this case, it would have meant attendance at the magistrate’s court. Within the local community, a disregard of the call to appear before the chief indicates a lack of respect for the institution, norms and values of the community. As such, one may end up being alienated because such actions reveal you to be a munhu asingagarisike nevamwe or asina hunhu (a difficult or ill-mannered person). Taking the matter to the chief’s court was a last avenue of appeal within the clan grouping in accordance with the hierarchy within the dare system of justice at the local level. The chief has authority to address matters of infidelity and domestic abuse, following customary law. A case of infidelity is regarded as undermining the institution of marriage, and some form of redress is required to repair relations as well as to appease the aggrieved party. Customarily, compensation in the form of cattle and goats is offered to the aggrieved party. The offenders are also given an opportunity to apologise for their actions and to take responsibility for rebuilding broken relationships. Here the couple and the third party were expected to apologise to one another and to offer appeasement: the wife to the husband, for being involved in an act of infidelity; the husband to his wife, for using violence in trying to make her divulge information about the man she was involved with; and the third party, for undermining the marriage of the couple. The third party who had been involved with the woman was himself married, and, therefore, the issue at hand affected two families. The chief inquired from the wife of the other man how she had reacted, and the

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form of redress which she required. This woman failed to make a claim regarding redress, and instead insulted the woman who had been involved with her husband. She used demeaning words and was rebuked by the chief, who corrected the woman for being insensitive and for disrespecting the dare. She was immediately asked to apologise for her actions and for disrespecting the people who were gathered to assist in solving a problem that was facing the two families. At that point, the chief emphasised the value of the dare system in fostering social harmony in the community, indicating that when people have disagreements or conflict, the dare provides a platform where people can air their concerns and the parties can deliberate on how they want the matter to be resolved. What was critical from these deliberations was the need for parties to show remorse, acknowledge the wrongful acts and take responsibility as well as respect the dignity of all beings. It was pointed out that justice results when dignity is restored, and social harmony is rebuilt. Furthermore, the social fabric of the community ought to be preserved, even in the difficult circumstances of violence and harm. This account reflects the complex experiences of men and women in relation to administering justice at the community level. ‘Justice on the ground’ can be captured by local words such as kuenzanisa (creating a balance), kunzwana nhunha (listening to troubling issues) and kuringanisa (making amends or creating a balance). Justice, as described by people in Mudzi District, occurs when a sense of dignity has been restored through the actions of the offender, as well as through the support of the community in rehabilitating the affected parties. This is captured through local idioms and proverbs, such as Munhu haarasi hunhu nekuda kwechigumbu (A person cannot throw away their dignity because of anger or a bad encounter).

Challenges Experienced by Women in Seeking Justice In some Zimbabwean communities, when a married woman commits adultery, as discussed earlier, she is chased away, and her family is asked to reimburse the husband’s family her bride price. This could possibly explain why the woman in Mudzi in the above story did not confess upfront for fear of being compelled to get divorced. On the contrary, when a married man has committed adultery, he is expected to pay compensation to the spouse for her to forgive him. This usually takes

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the form of offering a cow to his wife. In instances where the extramarital affair has resulted in the conception of a child out-of-wedlock, the man is expected to pay compensation and take care of the mother of the child. Some women in the study expressed that they have limited leverage in holding their spouses to account. Many young women repeatedly said ‘ukada kuenda kunomhan’ara kuna sabhuku kusabatwa zvakanaka unobva wanzi enda ikoko’ (if one considers reporting to the village head the issue of abuse, the man can tell you to move out) so they suffer in silence. This situation is compounded by the lack of support in some families, especially when the in-laws do not approve of the union. In most Zimbabwean families, before a couple gets married it is customary to inform the family elders about the intention to get married. Usually, the woman informs her vatete (aunt) that a man has approached her and is interested in marrying her, and similarly the man informs his sekuru (uncle) about the partner he is interacting with. Both parties are expected to pay a visit to the uncle and aunt in a practice called kuonekera (visitation), where the elderly family members get acquainted with the two and conduct their inquiries, which include ascertaining that the woman is not underage, havasi vana vanyamunhu (their kinship ties are not too close) and vanhu vanobva kumhuri yakanaka (the party comes from a good family). Once the inquiries are completed and the parties are ready to take the next step, which is roora or lobola,2 they work closely with the aunt, uncle and munyai (go-between) to negotiate with the in-laws for a date as well as settlement for the customary union. In this process, an aunt wields a lot of power in the family as she is responsible for mediating many customary proceedings. Hence, when the woman encounters any challenges in her marriage, she confides in her aunt who in customary terms has authority to summon a dare to address the issue as was the case in the court hearings covered in this chapter. A compromise in the relations between men and women as shared by participants often emerges from the expectation among some in the community that a mukadzi (a woman) should possess qualities

2 Lobola or roora is the customary practice and ceremony for officiating a marriage. It is a rite of passage into married life for both parties in which the groom’s family visits the bride’s family and to discuss the union. This results in a ceremony called marooro (traditional marriage) where the family of the groom brings forth gifts, money and livestock to offer to the family of the bride as symbol of their union.

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that demonstrate that she has been ‘domesticated’. These traits were highlighted through colloquial terms such as ‘anofanira kuita senjiva’ (she must be like a pigeon), because mukadzi ‘chikwari haaite haagari mumba’ (it’s a wild bird that is difficult to domesticate). A njiva (pigeon/dove) is a stout-bodied bird often tamed as a household pet or consumed as meat serving. The illustration that women should be like a pigeon carries twofold meanings; first it demonstrates a higher moral value that is placed on women as they are equated to a domestic pet that is trained to be loyal and tame. Secondly, pigeons are considered loving birds that live in harmony, and its use suggest that women have a role to play in bringing peace and unity within the family. On the contrary, a woman chikwari is considered an independent and often promiscuous woman who is difficult to control and domesticate. Jansen and Crowe (2006: 113) describe chikwari (swainson’s spurfowl) as an opportunistic game bird that adapts easily to different habitats. Its ability to adapt to different living conditions suggests that it has supernatural traits and intelligence that enables it to perform better than other species of its kind. The use of the term chikwari in the local context denotes someone who is opinionated, free spirited and independent, traits that are often misconstrued as being stubborn, promiscuous and in submissive. For example, one woman in Chief Nematombo’s community in Hurungwe shared that ‘even vanhu mataurirana maita semuri kuwirirana moita hurongwa hwenyu munhu anogona kuzongozvimisa iota zvimwe (even when you have agreed on something the man can revoke the plan without consulting). A change of plan as mentioned above often cause tensions among couples and may result in physical assaults or neglect by the husband. To avoid tension, some women shared that they overlook the ‘bad actions’, especially when they believe the family will not be able to step in. Some women in the study indicated that it is often difficult for a woman to confront a man because it makes her vulnerable to abuse or expulsion. For instance, one lady in Chief Dendera’s community in Hurungwe shared that: “Senge kana akanzi anenda kuma girlfriends ake ukamubvunza anotanga manyawi oti hee handidi zvekutongeswa. Ukaramba uchidero wotopiwa mbama nechibhakera” (When he has been away fooling around, if you ask about the matter, he becomes bossy and will tell you to stop questioning his actions. If you persist, he beats you).

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The above challenges tend to prevail because many of the young women in Hurungwe and Mudzi are in marriages of convenience, in that they eloped, and their marriage has not been solemnised customarily. Some are living in strenuous arrangements, where they are consistently expected to give up their own feelings over pleasing the family and being accepted. This situation is precarious in homes where the woman is also a young wife in a polygamous relationship or living with in-laws that are not fond of the marriage. Most of the aforementioned abuses, however, occur under the watch of other women, i.e. mother-in-laws and sister-in-laws, especially ‘vana tete vakadzoka kubva kuvarume’ (a divorced sister-in-law whom they termed ‘return soldier’). For example, one young woman in Chief Nyamhunga’s community in Hurungwe shared that ‘a man might silence you by instructing you to be submissive and that you have no voice in this household. If you report the matter to a sister-in-law, she will advise you to hold it in because homes have their challenges. If you tell her that it is bothering you, she will advise you to be silent and submissive’. Resultantly, a woman in this living arrangement is often silenced, alienated and deprived of her humanity. Several traditional authorities I consulted about these challenges emphasised that it is not in their custom to look away when a woman is being oppressed. Chief Chimukoko in Mudzi District for example pointed out that in her community people are aware that she does not approve of abuse and whenever a matter is brought before her court, she reprimands the offender harshly. This she says has made her a respected leader in the community who instils Hunhu.

The Centrality of Hunhu in Fostering Justice Hunhu denotes both a moral code and a self-reflective lens for understanding the relations of men and women. It ascribes value to human beings by emphasising human dignity as integral to the wholeness or oneness of all life, and it locates the individual human within the larger community (Nabudere 2011; Setiloane 1978). Hunhu identifies human beings as interdependent entities that strive to bring out the best in society by respecting and valuing the essence of life that all beings possess (Benyera 2014). Chimuka (2001: 30) argues that munhu (the being) becomes a being when it has unhu (virtuous qualities), because life is a shared enterprise (munhu vanhu). Life is lived in the community and

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the individual’s conduct is therefore sanctioned by the same community in a reciprocal relationship. The hunhu (virtuous qualities) vary according to how the community conceptualises what makes up their being, and it also evolves to the extent to which the community encounters experiences that transforms their being (Chimuka 2001: 31). Nonetheless, the goal of hunhuism is to develop munhu (the being) principled on hunhu (virtuous qualities), and munhu ane hunhu (a wellcultured or well-mannered person) is conceived as being endowed with a disposition to act virtuously (Chimuka 2001). Chimuka (2001: 32) adds that the Shona virtues that account for hunhu are prescribed through tsika nemagariro (norms and values) which relate to kunzwanana (mutual understanding), kugarisana (peaceful co-existence), kuwadzana (fellowship), hushamwari (friendship), kudyidzana (mutual hospitality) and mushandirapamwe (cooperation). One woman from Chief Chimukoko’s community in Mudzi District pointed that: Chakakosha mukugarisana kwevanhu ndechekuti vazive kuti vese vanhu saka vanofanira kuremekedzana zvisinei kuti munhurume kana munhukadzi (It is important for people within their communities to recognise that they are all human beings and they should respect one another regardless of being men or women). Human dignity provides a deeper understanding of people in their community setting, in that it encapsulates the essence of one’s being in relation to others, and without dignity, one’s sense of self loses meaning. As a result, human dignity is built on the principle of reciprocal recognition of human beings as entities within a cosmological community that has duties and responsibilities of one towards another (Setiloane 1978). Being munhu ane hunhu (a well-mannered person) has a lot of bearing on how other people relate to you, because information about the ill-mannered behaviour of a person is often shared among community members and can cause one to be rejected. The research participants also shared the view that both men and women ought to conduct themselves in a dignified manner as they are all members of the same family (vanhu vemhuri imwe). Hence, ‘bad behaviour’ tarnishes the relations of people and creates havoc in the family, which disturbs its harmony. Referring to the case of infidelity in a marriage setting, whether committed by a husband or a wife, they expressed the view that cheating on one’s spouse destroys trust, which makes it difficult for people in union to live in harmony. If people have problems in their marriage, they are supposed to first discuss the matter as

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a couple, and if they fail to resolve it, there are structures within the family that can assist them. Here they can be referred to family members such as sisters, brothers, aunts, uncles and grandparents, who, in most cases, are familiar with both parties and would have leverage in advising the parties about a path to resolve the matter amicably. However, concerns were raised about situations in which some family members disliked one of the parties, which might engender further bad feeling. Here they mentioned religious elders and community elders as entities in community that are often neutral but are willing, and often able, to help people with a dispute to resolve their issue. What remained important in the studied communities with regard to strengthening the relations of men and women when a dispute occurs is re-instilling unhu. This occurs through discussions that allow the affected parties to reflect upon the causes and consequences of their actions in a manner that respects the dignity of all entities. The conflict is resolved by upholding the dignity of beings and rendering compensation in a manner that improves the situation for affected parties. The interviewees emphasised that justice should transform the violated party in a manner that fosters positive social relations between conflicting parties. This fulfils the expression of one participant in Mudzi who said that ‘Munhu haarasi hunhu nekuda kwechigumbu (A person cannot throw away their dignity because of anger or a bad encounter)’. These words were shared to demonstrate that the virtuous qualities of a person are demonstrated by their ability to remain peaceful even when they have been provoked or things do not go the way that they would like them to go.

Closing Remarks This chapter has shown how justice on the ground unfolds, and the ways in which it resolves conflicts between people through the fostering of social harmony. Most people in Mudzi and Hurungwe Districts rely on the community courts for justice, and the dare involves the whole community. Several women in the study who have used the dare pointed that the community courts assist them to obtain justice, especially because they had a platform to be heard and demand reparations, which were often paid out. More so, the dare is handled by parties familiar to them, who also understand the values of the community, particularly the ethos of Hunhu which requires that all people be treated with respect and dignity.

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Even though more men than women are appointed to chieftaincies in the studied communities, women are clearly integrated into every level of the community courts, both because of constitutional provisions that have ensured that they are involved as well as due to community customs. Every chieftaincy includes a council of both men and women, and this applies also to the village head (sabhuku) and to the headperson (sadunhu). This accommodation of men and women in community leadership structures indicates that all people are recognised and play a significant role in fostering harmony and upholding of customary values. Despite the forms of oppression that women continue to face in the home and in the community, the dare system as it is practiced in Mudzi and Hurungwe Districts, at its best, supports a relational model that emphasises the interconnectivity of people and the central value of protecting the dignity of everyone. The community court system, operating at the family, village and chief levels, creates an interlapping support structure for communities to resolve conflicts in order to sustain the social harmony they need in order to survive.

References Benyera, E. 2014. Debating the efficacy transitional justice mechanisms: The case of national healing in Zimbabwe. Doctoral dissertation. Pretoria: University of South Africa. Bhebe, N., and T. Ranger (eds.). 2001. The historical dimensions of democracy and human rights in Zimbabwe. Harare: University of Zimbabwe Publications. Chimuka, T.A. 2001. Ethics among the Shona. Zambezia 28 (3). Constitution of Zimbabwe. 2013. Zimbabwe’s Constitution of 2013. Government Publications. Downloaded at: https://www.constituteproject.org/con stitution/Zimbabwe2013.pdf. Accessed 7 April 2018. Gelfand, M. 1973. The genuine Shona: Survival values of an African culture. Gwelo: Mambo Press. Heal Zimbabwe Trust & Zimbabwe Civic Education Trust. 2016. Exploring indigenous transitional justice mechanisms in Zimbabwe. Transitional Justice Policy Brief Series 1, February 2016. Downloaded at: www.veritaszim.net/.../ Policy%20Brief%20on%20Transitional%20Justice. Accessed 6 June 2017. Jansen, R., and T.M. Crowe. 2006. Food preferences of Swainson’s spurfowl, Pternistis Swainsonii, in a diverse agricultural landscape. African Journal of Wildlife Research 36 (2): 113–121. Kwayedza. 2014. Zvidawo nemadzinza acho. Downloaded at: http://www.kwa yedza.co.zw/zvidawo-nemadzinza-acho/. Accessed 31 July 2017.

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Mlambo, A.S. 2014. A history of Zimbabwe. New York: Cambridge University Press. Nabudere, D.W. 2011. Afrikology, philosophy and wholeness: An epistemology. Pretoria: African Books Collective. Nyathi, P. 2015. Ngozi: An African reality…ensuring social justice and fairness. Downloaded at: http://www.herald.co.zw/ngozi-an-african-reality-ensuringsocial-justice-and-fairness/. Accessed 28 August 2017. Saki, O., and T. Chiware. 2007. The law in Zimbabwe. Downloaded at: http:// www.nyulawglobal.org/globalex/Zimbabwe.htm. Accessed 6 June 2017. Setiloane, G. 1978. How the traditional world-view persists in the Christianity of the Sotho-Tswana. Pula: Botswana Journal of African Studies 1 (1): 27–42. Zimbabwe National Statistics Agency. 2012. Census 2012 national report. Downloaded at: http://www.zimstat.co.zw/sites/default/files/img/Nat ional_Report.pdf. Accessed 6 April 2018.

CHAPTER 5

Women at the Centre: The Case of Gueguegue Community, Boane District, Mozambique Zefanias Matsimbe

Introduction As in most countries across the African continent, and in the Southern African region in particular, people in Mozambique use multiple mechanisms to meet their day-to-day justice needs outside of the state-led system of justice or the magistrate’s court. As was mentioned in the introductory chapter, various scholars who analyse systems of justice in the country name these practices differently; some call them traditional or indigenous, and others call them informal or alternative, in an attempt to distinguish them from the formal or state-led system of justice. The introductory chapter of this volume provides a well-elaborated explanation of the meaning of each of these nomenclatures. That chapter also provides the rationale for our decision not to use these designations. Instead, we call all these forms of justice outside of the state-led system ‘justice on the ground’.

Z. Matsimbe (B) Department of Political Science and Public Administration, Eduardo Mondlane University, Maputo, Mozambique © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 C. Wielenga (ed.), African Feminisms and Women in the Context of Justice in Southern Africa, https://doi.org/10.1007/978-3-030-82128-9_5

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Our interest is to identify the different practices and examine how they work to meet the justice needs in the Gueguegue community in southern Mozambique. More particularly, our interest in the chapter is to understand the role of women in justice on the ground. For this, we scrutinise women’s influence in community-level initiatives of justice, such as family and neighbourhood courts, church-led initiatives of conflict resolution, the different levels of community leadership and traditional healers. Some of these actors are acknowledged by the law and constitution of the country and some are not. Gueguegue community is located less than five kilometres from the town of Boane, where the local magistrate’s court and administrative and state services are located. Despite being so close to these services in Boane, people in Gueguegue mentioned turning to the district court to meet their justice needs only when they have exhausted all other means of conflict resolution within the community, or when faced with issues that involve criminality. Distance is not an impediment, since the court can be reached on foot, but local residents have a very strong preference for the local mechanisms of conflict resolution. This could lead us to describe the state-led system as the ‘alternative’ to the systems of justice on the ground. Justice on the ground is considered to be more accessible, faster, cheaper and with rulings based on the framework of local customary law. It tends to restore harmony within society. In many instances, for outsiders, there are negative perceptions of justice on the ground, since it is considered ‘patriarchal’ or maledominated. However, the findings in Gueguegue reveal that although there are complex relationships between women and men, women in Gueguegue remain centrally involved in justice practices and wield power in rulings on social matters at all levels. More importantly, women are the frontrunners in fostering the norms and values that help the community to restore balance and harmony in the complex networks of relationships between men and women. Another important finding of the research project is the coexistence of discontinuities and continuities regarding understanding of the role of women and the relations between men and women in society, which will be discussed in the course of this chapter. This research process took place between January and May 2018 through semi-structured interviews with women, mostly community elders, and members of other community bodies involved in dispute resolution in Gueguegue, as well as participant observation.

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Gueguegue is a poor, peri-urban community within the Boane municipality in Maputo province, southern Mozambique. In the last few years, Boane has suffered from massive pressure on the land, provoked by the expansion of Maputo city, the capital of Mozambique, and of Matola city. The most common types of grievance in Gueguegue include breaches in individual dignity (insults), assault, domestic conflict (mostly between husbands and wives, often ending in violence), property theft, adultery and accusations of witchcraft.

Women’s Roles in Justice Within the Family In Gueguegue, as in other parts of southern Mozambique, families abide by hierarchies and differentiation of roles between men and women. In the case of a couple (husband and wife), the man is seen as the head of the family, and the ‘provider’ (wanuna i n’hloko ya munti). Because of this, a woman (or wife) is expected to desist from disrespecting her husband, regardless of his socio-economic status. However, this does not necessarily mean that the wife is totally submissive to her husband. A woman also has power within the household. The proverb a munti i munti hi wansati (a house only becomes a home if it has a woman in it) speaks to this, as does the fact that a n’gwendza (a man without a wife) earns little respect in society. Although the assumption of the superiority of mulumuzana (the head of the family) is apparent in Gueguegue, the reality on the ground is the existence of collaboration between husband and wife in decision-making regarding domestic affairs. As one of the interviewees said,1 xilo ni xilo la muntini kulaveka mukombisana wene na bava (decisions about all aspects of the household are taken after a constructive discussion between husband and wife). The majority of women interviewed did not have formal employment, but those whose husbands were still alive affirmed categorically that although they had no formal income, they played a key role in decision-making about the management of financial resources brought home by their working husbands. As one woman explained: ‘I don’t have a formal job, but I do my farming, which allows me to produce vegetables and cereals for our consumption. I help my husband. So when he gets

1 A woman of around 50 years.

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his salary, we sit down to decide how we use it’. The argument is that although the wife may not bring money home, she contributes economically through the resources gained from the farm and thus has economic power. In conflict between a couple, the first option to discuss the matter is in the bedroom late at night when the children and the rest of family are sleeping, to avoid making public what is considered xihundla xa munti (the secret of the family). All couples have conflict, but vani xihundla (they keep it secret). It might be difficult to determine the power of a woman in this discussion, but what is known is that most of the time, the matter ends there because the issue is resolved in the home. In the case of failure to resolve the matter as a couple, the couple communicates its dispute to other family members, and more particularly to aunts from both sides of the family, to help resolve the matter amicably. Couples make a tremendous effort to avoid making their disputes public, for the sake of harmony. We found evidence of the strong influence of women (aunts or other elderly women) in conflict resolution within the family. Families in Gueguegue are generally extended families. Children with wives and children still live in their parents’ homes. Daughters who give birth out of wedlock also live with their children in their parents’ homes. This situation increases the possibility of conflict. In these cases, mothers are the first to know and to intervene in trying to solve the conflict, because they are in the home, compared with husbands who leave the house in the morning to go to work and only come back at the end of the day. Mamani hi yena a tivaka ta vana a muntini (The mother is the first to know about any issue related to the children). Mothers-in-law are the first to intervene in cases of conflict between sons and daughters-in-law. The practice in Mozambique is that in a case of conflict a daughter-in-law must approach the husband’s mother or a sungukati (elder woman) from the spouse’s family, as a sign of respect to the husband’s family. The most important advice given by the mother-inlaw is that the daughter-in-law should be understanding of her husband, saying: Nwananga, ku yaka ka ndjangu swa karhata, swi lava uni mbilu (My daughter, building a family is difficult, it requires patience). They teach their daughters-in-law to respect their husbands and to always apologise to them if any wrongdoing occurs: in other words, woman must always apologise even if the man is in the wrong. They use their motherhood and long-lived relationship in their marriage to convey this idea

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to their daughters-in-law, in the name of peace and harmony within their families. Thus, in Gueguegue the family constitutes the first site for resolution of domestic conflict, and women play a central role in resolving conflict.

Women’s Roles in Justice Within the Immediate Neighbourhood Relating well to others in a reciprocal way is of great importance in a community in which people live in close proximity to one another and are dependent on one another for survival. As most of our interviewees said, Muyakelani i xaka lawena lo sungula (A neighbour is your first relative), and therefore, there is a need for peaceful coexistence and friendship. Conflicts between neighbours are inevitable. Again, the fact that women are most often present in the household makes them the first to face conflicts which arise. The most common conflicts are between children and youth, and quite often they end up spreading to other family members, particularly mothers from both sides, who come out in defence of their children. At the same time, mothers are also the first to try to resolve conflict with neighbours, and this is often achieved as soon as conflict is experienced, to prevent it from escalating and souring relations for a long time, because neighbours frequently help each other out on a daily basis. As a 51-year-old woman put it, when conflict occurred with my neighbours, they sat down and tried to resolve the issue immediately to restore harmony, hikusa loku hi nga twanani hinge wokelani ndzilu kumbe munyu (because without understanding each other we cannot ask each other for a match-stick to make fire, or for salt). Neighbours mean survival in this context. Conflict involving children or youth is easily resolved as parties understand their mutual dependence: Nawena upsalile. Namuntla hi mine, mundzuku hi wene (You also have children. Today it may be mine to make an offence, but tomorrow it may be yours involved in misconduct). This leads mothers to soften and attempt to mediate without the need for compensation. Women from the community teach children from the neighbourhood to play peacefully, to see each other as brothers and sisters and to learn to apologise when they offend one another. This happens in order to maintain social harmony and balance in relations between neighbours.

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Mothers work as counsellors and teach the children from the community how to behave. Some conflict may require the offending party to approach the mother or grandmother of the other party to request them to pay attention to the behaviour of their child, but in the end, the general advice is for parties to forgive one another and to move forward together.

Women’s Roles in Justice Within the chefe das dez casas The chefe das dez casas (chief of ten households) is the next option that is resorted to when cases cannot be solved within the family or between neighbours. This position is occupied by an individual chosen by the community. In Gueguegue, we found several women who played a leading role in conflict resolution. In fact, the majority of chiefs were women. The explanation given for the predominance of women in this position is that they are more sensitive and show a greater interest in holding the community together. They are more available as problemsolvers, and they keep the community functioning. In Gueguegue, some women were known particularly for their aptitude for facilitating the practice of justice, which allowed the mending of family and social relations within the community and also fostered the norms and values that helped the community to live in harmony. When a conflict is not solved within the family or between neighbours, the case is taken to the home of the chefe das dez casas to seek resolution. The chief calls both parties to come together for a hearing. This chief, who is either a man or a woman, is assisted by women elders, depending on the type of conflict. In conflicts involving a couple, older men are also called upon to assist in hearing the case. The most common problems taken to the chefe das dez casas in Gueguegue include excessive consumption of alcohol by youths, smoking of mbangi (marijuana), property theft and domestic conflicts. Most of the youth in Gueguegue are unemployed.

Women’s Roles in Justice Within the Block The chefe de bloco (chief of the block) is the next option after the chefe das dez casas. One block is made up of about fifty households. In principle, neither the chefe das dez casas or chefe de bloco are part of the traditional

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authority, nor are they assumed to be part of the traditional dispute settlement mechanism (Araújo 2008), but the reality on the ground shows that they are very important for the resolution of conflict. In cases of unresolved problems brought by the chefe das dez casas, the chefe de bloco calls upon some elders and the chefe das dez casas who brought the case. During interviews, the role of women in conflict resolution at this level was emphasised. Chefes de bloco tend to be men, but women tend to gain predominance in conflict resolution at this level, by virtue of the majority of chefes das dez casas being women.

Women’s Roles in Justice Within the Social Affairs Group In Gueguegue, we found a prominent group, called the acção social (social affairs group), made up of mostly masungukati (elder women). The group was formed to provide basic services to meet the social needs of the community and to deal with its day-to-day concerns, with the objective of minimising the limitations of the state in reaching the community and providing the necessary resources for them to live. The group has helped in funerals, particularly in relation to families in great poverty. Women in Gueguegue draw power from this organisation in order to address an extensive array of disputes emerging in the community, particularly those that are called ‘social cases’, any conflict that occurs in the domestic context, or those which emerge in family relations. In resolving conflict, women seek to hear both sides and appeal for mutual understanding. The group also plays an important role in kudjodzisa wutomi laku hanya (teaching how to live in a community), namely, teaching ‘right behaviour’ to couples, and in the community as a whole. The acção social works in close collaboration with local authorities in Gueguegue.

Women’s Roles in Justice and in Supporting the Community Leader Community leaders are legally recognised institutions in Mozambique. In Gueguegue, community leadership is exercised by the secretário do bairro (neighbourhood secretary), a man who works in collaboration with the chefe de bloco, chefe das dez casas and the acção social. One of his

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responsibilities is to exercise social, cultural and political control over the community. Though these individuals were instituted by the government as part of a complex relationship between the state and its citizens, they do not depend on the backing of the state for their survival. As in most parts of the continent, community authorities in Gueguegue enjoy extensive popular acceptance by and respect from their community. The community in Gueguegue calls this man papá (father), suggesting the way in which the whole community is perceived to be an extended family under his care. Community leaders are the custodians of practices of justice on the ground because they have knowledge and understanding of community norms and practices. It is this aspect that makes them more effective in resolving a wide variety of local problems. The most important noticeable aspect is that conflict resolution tends to focus on the preservation of social ties, rather than on punishing the offenders. A word of apology is often sufficient to consider the case closed. Although the community leader is a man, when it comes to resolving disputes he works with a group of older women, most of them from the social affairs group, which includes the wife of the secretário do bairro. Women offer their advice to the community leader on how the matter brought before them should be addressed. Their opinions are very important for the deliberations because they are the ones who know best the parties in conflict. When a case is brought before the community leader, he calls an assembly to gather under a tree to deliberate. Anyone from the community is welcome to attend the hearing and to express their views, if they deem it necessary, or are interested in doing so. Participating in this way reportedly enables a sense of belonging to the community. One’s problems are community problems, and, therefore, the solution has to be found by everybody together. Punishment through a jail sentence or recording someone’s wrongdoings (e.g. in the form of a criminal record) is not considered at this level. By law, unresolved cases have to be forwarded to the magistrate’s court. However, based on information received from the community leader, this is rare. The community makes an effort to resolve all the cases within its jurisdiction because members of the community consider themselves to be one people. Elderly women, in particular, take the problems caused by others, particularly those of youth, as if they were problems of

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their own children. They feel the burden of change, insofar as the children of today are no longer ‘well behaved’ as they were in the past. The expression a vana lava hi va psalaka namuntla (children of today) reveals their frustration with the new generation, but at the same time suggests the sense of responsibility on the ground that they feel towards them, as well as the sense of community togetherness.

The Role of Women in the Church Christianity is a predominant religion in Mozambique, together with animism. The southern part of the country, in particular, is mostly influenced by Protestant denominations imported from South Africa by migrant miners. The church is indubitably one of the institutions that plays an important role in resolving conflict in Gueguegue. As with community leaders, religious leaders and women elders, church leaders occasionally take the lead in resolving conflict. The most common problems solved in this context are disputes between couples going to the same church. Because wives are often the ones bringing the cases before the church, women church members are the first to receive the case. To start the resolution process, the couple is kept separate. Va mamani or masungukati (elderly women) take the wife aside to hear her case while madodana (elderly men) sit with the husband. All have the sole purpose of reconciliation between the parties. Later, the two parties are brought together in order to resolve the issue. They will receive counselling and advice from the two groups of elders on how they should live in harmony. Quotes from the Bible calling for peaceful living, harmony and love for one another are cited, and prayers are conducted to soften the hearts of the warring parties. Men and women work side by side in meeting justice needs within the church, which helps to restore harmony, not only in the church, but in the community of Gueguegue as a whole. Church members prefer to have their cases resolved by fellow church members as they are seen to be neutral. To maintain social balance in the church, elders teach other members how to live in harmony in a family. In the past, church members, mostly women, used to move from house to house teaching women good home-care practices, but in recent times this is no longer practised.

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The Role of Women in AMETRAMO As referred to in the introductory chapter, spirit mediums, traditional healers and diviners have a recognised role in communities across Africa, and Gueguegue is no exception. In Mozambique, traditional healers are organised into an association known as the Mozambican Association of Traditional Healers and Diviners or Associação de Médicos Tradicionais de Moçambique (AMETRAMO), with widespread representation down to the level of the local community. AMETRAMO is present in Gueguegue. The majority of its members are women. The powerful role played by the spiritual or metaphysical gives traditional healers an influential role in the community. Members of this organisation are particularly well suited to resolving conflict related to accusations of witchcraft. Gueguegue is a poor community and with very little economic activity, making it a fertile environment for accusations of witchcraft to arise. People may attribute unemployment to a misfortune caused by some family members, and women have been the primary victims of prosecution. Accusations of witchcraft among neighbours or relatives are resolved by AMETRAMO, which uses the spirits to reveal whether or not the accusation is valid. If the accusation is shown to be valid, the offender is expelled from the community, and the neighbourhood has to undergo a cleansing ceremony to restore peace. But if the accusation is declared invalid, the accused has to be compensated with a small amount of money, and a cleansing ceremony is conducted to reinstate the person’s honesty before the community.

Police and the Magistrate’s Court Community leaders do not have legal authority to preside over criminal offences. Cases of violence, rape, robbery or murder are referred to Boane police station and then to the Boane magistrate’s court. At the time of our fieldwork, we were informed of a recent case of suspected rape of a minor by his own father. This is a case which, although it occurred within the family, is considered to involve a criminal charge, and so the mother of the minor presented the case directly to the police. An important aspect worth mentioning is the strong presence of women, even at police level. The police station has a gabinete de atendimento a mulher e criança (office for women and child care) to resolve

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cases of domestic violence and child abuse. This service was created by the General Police Command to provide care and assistance for women and child victims of domestic violence, sexual abuse, trafficking and matters related to juvenile delinquency. The office also works to promote equal rights and opportunities between men and women.

Challenges Facing Women in Access to Justice on the Ground Although women are actively involved in justice on the ground, challenges remain. Women in decision-making positions may well be disrespected by ‘hard-headed’ men in Gueguegue. Some men do not like to see a woman addressing a public gathering. Even if they do not show it openly, they reflect their displeasure by looking down when a woman is talking, or they start talking to each other, showing a lack of interest in what is being said. The chefe das dez casas and chefes de blocos who happen to be women report not being respected, especially by young men, who look at women as powerless and as unable to impose their authority. In cases involving young couples, young husbands sometimes do not appear when called by female leaders. This forces female leaders to work in the shadow of male leaders. Another challenge is time. Women play a central role, not only in the activities of the household, which often include large numbers of people working together in the extended family, but also a central role in agriculture, since they are the main labourers on family farms, which leaves them with limited time to get involved in community activities. Lastly, in some instances husbands of women working in positions of leadership feel unhappy when they see their wives engaged in community activities, perhaps seeing this as a threat to their own power.

Continuities and Discontinuities On the one hand, there has been some change in the ways in which justice needs are met, particularly in terms of the increasing involvement of women. On the other hand, some long-held assumptions remain in place. One of the values that seems to have remained in place is the assumption that a woman’s place is in the home. Women’s roles are still associated with taking care of and educating children at home, while men

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still hold the power to control resources and the household (wanuna i n’hloko ya munti). Global political change and the introduction of multiparty democracy in Mozambique from the 1990s shifted the relationships between men and women by opening up more space for various ‘civil liberties’, including the formal recognition of women in decision-making positions and conflict resolution. Interviewees reflected their awareness of this by pointing to the increasing number of women in ministerial positions and in the parliament. Women in Gueguegue resisted the assumption that women are powerless. According to our interviewees, women find different ways of exerting power, for example, through initiatives such as xitique (women’s financial schemes or societies), which give them a source of income and further shift the power relations between men and women in the community.

Conclusion The case study of Gueguegue shows that despite the proximity of judicial services, justice practices on the ground play an important role in meeting the justice needs of the community. In fact, justice practices on the ground are the main forms of justice that people use to resolve conflict. The study also noted that in Gueguegue, as in most parts of southern Mozambique, women hold power in different spheres, particularly in conflict resolution, from the domestic sphere right through to the public sphere. Women play a central role in maintaining harmony within the community. Men and women work together in a range of ways and continue to restore the balance so that the community can continue to live interdependently and in harmony. Some of the assumptions regarding women’s roles are brought into question in this study. For example, it is evident that women are not simply ‘at home’, but play a central role in working on and maintaining the farms which form the basis of food security for their extended families. When men are in positions of authority, they work together with other men and women, to govern the community and to find solutions to conflict. This community, like many others, shows the complex ways in which women and men interact in order to maintain harmony, and the ways in which different influences, from state legislature, global norms and values in relation to women’s representation, Christianity and long-held customs

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and traditions are woven together to shape relationships between men and women as they practise justice on the ground.

References Araújo, S. 2008. O Estado e as instâncias comunitárias de resolução de conflitos em Moçambique. Das diferentes políticas impostas à diversidade de respostas locais. […] Lei nº 10/92 de 6 de Maio. Lei Orgânica dos Tribunais Judiciais. Lei nº 12/78 de 12 de Dezembro. Lei da Organização Judiciária de Moçambique. Meneses, M.P. 2006. Traditional authorities in Mozambique: Between legitimisation and legitimacy. In The shade of new leaves: Governance in traditional authority—A Southern African perspective, 93–119. Berlin: LIT Verlag.

CHAPTER 6

The Dissolution of a Customary Marriage: Women and the Traditional Court System in South Africa Welekazi Stofile and Mahlatse Mpya

Introduction South Africa has come a long way in recognising the significant role the traditional justice system plays in dispensing justice in the lives of ordinary men and women in rural areas. According to Mungwari and Stofile (2019), the role played by traditional justice systems as custodians of culture and in dispensing restorative justice in rural South Africa cannot be underestimated. One of the biggest challenges facing traditional courts is their failure in ruling on matters relating to women. Extensive literature has been written about how the traditional justice system is deeply

W. Stofile Tshwaranang Legal Advocacy Centre to End Violence Against Women, Johannesburg, South Africa e-mail: [email protected] M. Mpya (B) Afro-Middle East Centre, Sandton, South Africa © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 C. Wielenga (ed.), African Feminisms and Women in the Context of Justice in Southern Africa, https://doi.org/10.1007/978-3-030-82128-9_6

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patriarchal and dispense justice in a way that perpetuates unequal relations between men and women. While it can be argued that customary law in South Africa is deeply rooted in patriarchal norms and practices, and lack the sensitivity and knowledge to rule on gendered matters, one cannot ignore the fact that women in rural communities continue to make use of them and these court’s rulings have an impact on their lives. Therefore, we cannot underestimate the role and the impact they have in dispersing justice for women in rural areas especially on matters such as the dissolution of customary marriage. The dissolution of customary marriages by traditional justice system has become a contentious matter since these courts have no jurisdiction to be ruling on the dissolution of customary marriages. However, these courts continue to preside over the dissolution of customary marriages. According to South African legislation, a customary marriage can be dissolved by a court by a decree of divorce on the ground of the irretrievable breakdown of the marriage. The Mediation in Certain Divorce Matters Act, 1987 and Section 6 of the Divorce Act, 1979 are applicable in the dissolution of customary marriage. This chapter aims to assess the role of the traditional justice system in the dissolution of customary marriages with specific reference to the return of lobolo. According to the Recognition of Customary Marriages, Act 120 of 1998, Lobolo is defined as “means the property cash or inkind whether known as lobolo, bogadi, bohali, xuma, lumalo, thaka, ikhazi, magadi, emabheka, or by any other name, which a prospective husband or the head of his family undertakes to give to the head of the prospective wife’s family is consideration of a customary marriage”. This chapter will highlight the various types of marriages in South Africa with a detailed focus on customary marriages. Furthermore, it will discuss the Recognition of Customary Marriages Act 120 of 1998, which stipulates how a customary marriage should be dissolved. The chapter will also discuss the significance of lobolo and celebration of a customary marriage. Additionally, it will analyse which criteria are used to warrant the return of lobolo and whether this practice is prejudicial to women.

Background Soyapi (2014) notes that the traditional justice system, which is recognised in the Constitution of South Africa, has been in existence for a

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long time dating to pre-colonial times. Khunou (2011) explains that in pre-colonial South Africa, the institution of traditional leadership and authority was the mainstay of the way of life of traditional communities. It governed their day-to-day life, with traditional leaders serving both a political and administrative role. However, the respect and status accorded to traditional courts during the pre-colonial era were greatly eroded by colonial and apartheid regimes in South Africa. Before this erosion, traditional courts were deeply rooted and embedded in the inner system of indigenous culture and customs of traditional societies. The legitimacy of the traditional authorities was in their accountability to the community. While the traditional leaders passed laws, judged and took action through members of the traditional council (Dlamini 1999), communal participation was still important in the traditional justice system. Community members participated and debated matters before the courts freely and extensively thereby encouraging participatory resolution of matters. The power, roles and responsibilities of traditional leaders were guided by customary law (Khunou 2011). Koyana (1997) notes that customary law was the legal system at this time, meeting the needs of the communities without challenge and was widely accepted. The Women’s Legal Centre (2011) defines customary law as the customs and practices observed among the indigenous African people of South Africa, which form part of the culture of these people. They argue that customary law is fluid and flexible, varying per community, changing over time and is contextually dependent on specific cultural factors and customs. Thus, it is best described as “living customary law”, in which the rules are adapted to fit in with changing circumstances. However, the era of colonialisation brought with it the statutory regulation of traditional leadership. Khunou (2011) argues that colonial laws enacted to disenfranchise traditional communities of their land had a great impact not just on the institution of traditional leadership but also on customary law. This period in history saw the emergence of laws such as the Native Land Act of 1913 (which later became the Black Land Act) and the Native Affairs Act of 1920 (The Black Affairs Act). These laws introduced a system of self-governance to regulate the traditional communities and made traditional leaders an extension of the state and thus making them accountable to the government and not the people. This weakened the autonomy of traditional leaders greatly and created a divide between them and their communities. The laws also tried to

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make the application of customary law uniform. This gave birth to “official” customary law, a codification of perceived customary law practices by colonial and apartheid governments and courts. Unfortunately, this rendered customary law somewhat static and it meant that the official customary law sometimes failed to accurately reflect the customary law that is actually used in a given community, which is adapted to suit the context (Khunou 2011 and Women’s Legal Centre). The dilemma of reconciling the differences between “official” customary law and “living” customary law is one that post-apartheid South Africa has had to deal with. The end of apartheid brought with it the need for constitutional reforms to ensure fundamental rights and freedoms for all South Africans while still preserving the institution of traditional leadership. This resulted in policies and laws to bring democratic transformation to traditional authorities and institutions since 2005. The Constitution of the Republic of South Africa, Act 108 of 1996, Chapter 12, and Section 211 acknowledges traditional leadership while Section 212 outlines the roles of traditional leaders. Traditional justice systems play a crucial role as custodians of culture and in dispensing restorative justice in rural South Africa. Traditional courts remain influential, mainly because they continue to be recognised by communities as a legitimate mechanism to solve disputes and, further, because they are recognised constitutionally. They offer numerous advantages, including their accessibility, legitimacy, speedy resolution of disputes and their dispensing of restorative justice enabling community cohesion and peace. The Traditional Leadership and Governance Framework Act 41 of 2003 was enacted to ensure the recognition of traditional communities and provide for the establishment of traditional councils including the functions and role of traditional leaders. According to the Act, it recognises the offices, which have traditionally been involved in the facilitation of traditional justice systems. According to Soyapi (2014), the Act recognises kings, principal traditional leaders, senior traditional leaders, headmen and headwomen. For example, in the Barolong in the NorthWest, the court is presided over by a person appointed from among the members of the authority/council who will lead the proceedings and pass judgement with participation and buy-in from the said Council. Currently, the types of cases that may be heard by the traditional councils/courts are found in the Black Administration Act until such time that the Traditional Courts Bill becomes law. The Traditional Courts

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Bill (TCB) was passed by a plenary of the National Council of Provinces (NCOP) on 2 December 2020. Unfortunately, the version passed by the NCOP does not allow for people living in these communities to opt out of traditional courts, which would give people the choice of where to take their matters, between traditional courts and Magistrates’ courts. According to legal experts, the current version of the Traditional Courts Bill reflects a more conservative agenda aimed at making traditional courts into courts of law under Section 166 of the Constitution. The bill is now set to go back to the Portfolio Committee on Justice and Correctional Services for consideration of the amendments made by the NCOP Select Committee on Security and Justice. It will then head to a plenary of the National Assembly for final adoption before it proceeds to the President for signing and will then become a law. It is imperative to take into consideration these factors in critically analysing the impact the judgements of these courts have on rural communities. The language medium used in these proceedings is the mother tongue of the litigant(s). Evidence is freely given by anyone who wants to appear before the court. No oath is taken by the parties, and as a result, there is no question of perjury. Anyone present at the court proceedings may ask the witnesses questions and people generally move in and out without strict court procedure being observed. There is no strict adherence to the application of technical rules. Communal participation plays an important part and all the people present whether members of the council itself or ordinary community members can take part in the court proceedings. Any person present in the court may question the litigants, and decisions are reached through a consensus. There are some of the reasons why we argue that traditional courts or traditional leadership should continue to have jurisdiction on certain matters brought before them in South Africa. During the workshop for traditional leaders in Durban 26 to 28 July 1996, traditional leaders argued that customary law is the law of the majority of African people, and the traditional courts that administer justice according to this law are part of the cultural heritage of African people. The University of Cape Town’s Law, Race and Gender Unit asserts that customary law continues to play a crucial role in the lives of many of the 17 million South Africans living in rural areas. This argument has been made particularly by traditional leaders themselves as well as by academics.

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During Koyana’s presentation at the Constitutional Assembly Public hearing on Traditional Authorities, Cape Town, May 1995 “The indigenous constitutional system and the role of the customary courts today” he asserted that traditional courts are a useful and desirable mechanism for the speedy resolution of disputes given their nature as an easily accessible, inexpensive, simple system of justice. It may be argued that although there are shortcomings in the system and they are not beyond reproach, they may be able to adapt to changing needs and to the requirements of the Bill of Rights. One of the biggest challenges facing traditional courts is their failure in matters relating to women. While it can be argued that customary law in South Africa is deeply rooted in patriarchal norms and practices, and lack the sensitivity and knowledge to rule on gendered matters, one cannot ignore the fact that women in rural communities continue to make use of them. Therefore, we cannot underestimate their role and the impact they have in dispersing justice to women in rural areas.

The Role of Traditional Leadership in Dispensing Justice to Rural Communities The South African Commission Report (2003) on traditional courts and the Judicial Function of Traditional Leaders explains that traditional courts have jurisdiction over offences at customary law, common law and statutory offences of a less serious offence. The Black Administration Act of 1927 prescribes the kinds of cases that traditional courts can hear, allowing them to handle civil claims according to black laws and customs but with the exception of divorce and separation. Cases of serious crimes are excluded in terms of Schedule 3 of this Act. Schedule 1 of the Traditional Court Bill details the kinds of matters that traditional courts can and cannot handle. Matters which traditional courts are competent to deal with in terms of this Bill: (a) Theft where the amount involved does not exceed R15 000-00. (b) Malicious damage to property where the amount involved does not exceed R15 000-00. (c) Assault where grievous bodily harm is not inflicted.

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(d) Breaking or entering any premises with intent to commit an offence either at common law or in contravention of any statute where the amount involved does not exceed R15 000-00. (e) Receiving any stolen property knowing it to be stolen where the amount involved does not exceed R15 000-00. (f) Crimen injuria. (g) Advice relating to customary law practices in respect of— (i) ukuThwala; (ii) initiation; (iii) customary law marriages; (iv) custody and guardianship of minor or dependent children; (v) succession and inheritance; and. (vi) customary law benefits. (h) Any matter arising out of customary law and custom where the claim or the value of the property in dispute does not exceed the amount determined by the Minister from time to time by notice in the Gazette and different amounts may be determined in respect of different categories of disputes. (i) Altercations between members of the community.

Types of Marriages in South Africa South Africa has various types of marriages with civil marriages under the Marriages Act of 1961 being one of them. Some of the indigenous South African people married through their customs, and these were recognised in the former Transkei Marriage Act of 1978, KwaZulu Act on the Code of Zulu Law, 1985 and Proclamation No R151 of 1987 (Natal Code of Zulu Law, 1987). In 1998, the Recognition of Customary Marriages Act was passed into law, and this piece of legislation sought to recognise customary marriages while also repealing the laws that governed customary marriages in Transkei and KwaZulu Natal. In 2006, the Civil Union Act was passed, and this enabled people in same-sex relationships to marry. There is currently no statute governing Muslim marriages, and a bill has been in the making since 2011. Based on these types of marriages, it is important to critically analyse customary marriages before the Recognition of Customary Marriages Act was passed into law and what are the advantages and disadvantages of the Act.

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Customary Marriages Heaton (2010) states that in South Africa a customary marriage is viewed as being a union entered into in accordance with the traditions and customs of indigenous African customary law. Customary marriage is not a union between two parties but rather a matter of family. Generally, African marriages are private arrangements that did not require any intervention by an outside authority to be deemed valid (Phillips 1953). Heaton (2010) further states that customary marriage in essence is a familial matter, which does not require the approval of any official to be regarded as valid. The two families would agree on the terms and conditions that would benefit their own needs and demands during that process. African marriages are an ongoing process in the sense that it has no precise moment of beginning or end. Customary marriages matured and strengthened over years, through the birth of children and payment of lobolo. Furthermore, Phillips added that historically the death of a spouse did not necessarily dissolve the union, since the families could arrange its continuation through sororate unions. All the parties that took part in the rituals and customs of that marriage are able to verify marriages. Furthermore, unlike in civil marriages, polygamy is permissible in customary marriages. Recognition of Customary Marriages Act, 120 of 1998 According to the Recognition of Customary Marriages Act, 120 of 1998, a customary marriage is a “marriage concluded in terms of customary law”, and this Act defines customary law as “the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples”. The Act also prescribes the requirements for a customary marriage to be valid, and these include inter alia, that: • The prospective spouses must both be above the age of 18 years and • Must both consent to be married to each other under customary law, and the marriage must be negotiated and entered into or celebrated in accordance with customary law. • The parties must not be prohibited from marriage because of a relationship by blood or affinity as determined by customary law.

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• In addition to the above requirements, a husband in a customary marriage who wishes to enter into a further customary marriage with another woman after the commencement of the Act must comply with a further requirement set out in Section 7(6) of the Act, namely an application to the Court to approve a written contract which will regulate the future matrimonial property system of his marriages. Failure to comply with the provisions of 7(6) of the Act will render the purported further customary marriage void.

The Role of Lobolo in Customary Marriages According to Posel et al. (2011) “One of the key functions of lobolo that is highlighted in the literature is the relationship and bond it created between the families of the bride and the groom”. It is important to understand the significance of lobolo in customary marriage in order to understand why in some cases the criteria for dissolution of customary marriage require the return of lobolo. Nkosi (2011) argues that for some traditional leaders the function and significance of lobolo are seen as the transfer of the reproductive capacity of the woman from her family into that of her husband. He further states that it can be said that lobolo plays a legitimising function for the children born of the customary marriage. Dlamini (1983) asserts that lobolo in its proper customary sense has a multiplicity of legal functions and cannot be reduced to one thing. In other cultures in South Africa lobolo is used by the bride’s family to buy gifts for the groom’s family and to purchase all the necessary things that will be needed for the ceremony to place. While the Recognition of Customary Marriages Act, 120 of 1998 outlines the criteria for the dissolution of customary marriages, it is silent on the return lobolo. Section 3 (1) of the Act stipulates requirements for the validity of customary marriages. Although the Act does not explicitly refer to lobolo, it mentions that “the marriage must be entered into or celebrated following customary law”. So even though the Act does not explicitly mention lobolo it recognises that various cultures in South Africa use lobolo negotiations as an integral part of a customary marriage; hence, the Act makes provision of it. According to the Act, lobolo is defined as “means the property cash or in-kind whether known as lobolo, bogadi, bohali, xuma, lumalo, thaka, ikhazi, magadi, emabheka, or by any other name, which a prospective husband or the head of his family undertakes to give to the head of the

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prospective wife’s family is consideration of a customary marriage”. This importance was also clearly stated in Southon v Moropane (14295/10) [2012] ZAGPJHC 146 (18 July 2012) Salduker J where the court held at para 81 that there can be no valid customary marriage without lobolo being delivered or a least negotiated. Also, academics and courts have interpreted Section 3(1) (b) of the Recognition of Customary Marriages Act, 120 of 1998 (RCMA) as a tacit requirement that lobolo must be given in order for the customary marriage to be valid, or at the very least, there must be negotiations and agreement concerning payment in part or in full of lobolo. Another issue that has found its way to the courts for interpretation is the celebration of a customary marriage which differs across the various indigenous African peoples of South Africa. There is a lot of jurisprudence on this issue and it is not the purpose of this chapter to discuss them save to say that if only lobolo has been negotiated and paid and no celebration has taken place, that includes the handing over of the bride to her in-laws, the courts have ruled that no customary marriage existed between the parties concerned. Another element that may be raised here for information sake is that of the registration of a customary marriage which is a requirement in terms of Section 4 of the Act. The courts have been approached to make a pronouncement on whether non-registration invalidates a customary marriage and the court’s decision has been that non-registration of a customary marriage does not invalidate it. That being the case it is still advisable for women to register their customary marriages to save them the trouble that they endure when their spouses pass on especially if there is a dispute with the in-laws. The process of proving an existence of a customary marriage during such situation is often expensive and involves the High Courts, and women living in rural areas may not have the resources nor the knowledge to approach the courts to resolve the dispute. Another issue which the courts have had to deal with in relation to the Recognition of Customary Marriages Act relates to Section 7(1) and 7(2). Section 7(1) states that “the proprietary consequences of a customary marriage entered into before commencement of this Act continue to be governed by customary law”. This means that women who married under customary law before the commencement of this Act had no right of ownership and control of marital property and that the right of ownership and control of marital property was the sole preserve of the husband. Section 7(2) states that “A customary marriage entered into after the

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commenced of this Act in which a spouse is not a partner in any other existing customary marriage, is a customary marriage in community of property and of profit and loss between the spouses, unless such consequences are specifically excluded by the spouses in an antenuptial contract which regulates the matrimonial property system of their marriage”. The Constitutional Court ruled in the case of Gumede v President of the Republic of South Africa 2009 (3) SA 152 (CC) that Section 7(1) and Section 7(2) were inconsistent with the Constitution and invalid. Also in the Ramuhovhi and Others v President of the Republic of South Africa and Others [2017] ZACC 41, the Constitutional Court confirmed the constitutional invalidity of Section 7(1) which was made by the High Court of South Africa, Limpopo Division (Thohoyandou) as it unfairly discriminates against women in polygamous customary marriages which were entered into before the commencement of the Act on the basis of gender, race and ethnic or social origin. The Parliament was given 24 months to correct the defect, and currently, there is a Bill to deal with both Sections 7(1) and 7(2).

Dissolution of Customary Marriages in Terms of the Recognition of Customary Marriages Act, 120 of 1998 Historically, customary marriages were dissolved by one of the spouses. Section 8 of the Act outlines that a customary marriage can only be dissolved by a court on the ground of irretrievable breakdown of the marriage and if there is no reasonable prospect of the restoration of a normal marriage between them. According to the Act, the Mediation in Certain Divorce Matters Act and Section 6 of the Divorce Act apply to the dissolution of a customary marriage. This is similar to civil marriages. The Act does make provision for a traditional leader to be involved in solving a dispute in a divorce. It states in Section 8(5) that “nothing in this section may be construed as limiting the role, recognized in customary law, of any person, including any traditional leader, in the mediation, in accordance with customary law of any dispute, or matter arising prior to the dissolution of a customary marriage by a Court”. It is unclear whether the role that the traditional justice system plays in the return of lobolo (ukukhetha) is taken from this section. What is clear however is that the drafters of this legislation recognised that they may be a mediation role that traditional leadership may play before a customary marriage is dissolved by the courts.

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Return of Lobolo (ukukhetha) in the Dissolution of Customary Marriages The return of lobolo is a contentious issue based on the different customs in South Africa. However, according to Thulani Nkosi in his article titled “The ending of a customary marriage: What happens to the ilobolo?” Published in De Rebus in 2013 (November) DR 36, he argues that “in customary law, the central issue in divorce proceedings is a refund of the bridewealth, an obligation taken so literally that the husband could demand the return of the same cattle he had originally given. If they had died in the interim, the defendant could settle the claim with cash equivalent”. It has, however, been observed that this issue of ukukhetha arises when it is the woman initiating the dissolution of marriage. The family of the groom approaches the family of the bride requesting that the lobolo must be returned. The decision on the number of cows to be returned is based on a number of factors but chiefly among them or probably the most important one is the number of children born from the marriage. Nkosi (2018) asserts that when this happens there need to be certain factors taken into consideration according to the isiZulu custom and these include: • • • • • •

The number of children born of the marriage; The amount agreed upon by both parties; Which of the parties is to blame for the breakdown of the marriage; Infidelity; If the wife dies prematurely; Infertility.

In a study by Mungwari and Stofile (2019), it was found that traditional councils/courts in the three Provinces that were studied barely considered the other factors mentioned above other than the number of children born from the marriage. For instance, in a similar case that was adjudicated by a traditional court in KwaZulu Natal, the groom’s family demanded return of lobolo and the court ruled that out of the 8 cows that the groom’s parents had paid, 6 are to be returned as only two children were born from that union. The fact that the customary marriage had lasted for 15 years and that the groom had never worked throughout his life, it was only the bride who worked as a police woman and provided for

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her family was not taken into consideration let alone the marital property that may have been accumulated by the couple during the subsistence of the marriage. When one traditional leader was asked as to why the issue of ukukhetha arises when it is the wife who has violated the sanctity of marriage, he claimed that there have been instances where the husband has been asked to leave the matrimonial home to the wife and children but when pressed for examples none could be given. According to an article written by Melusi Xulu (originally written for a presentation held by Vryheid Justice Centre at Pietermaritzburg on the 20th August 2010), he argued that if the man is at fault for the break-up of the marriage, he forfeits the lobolo. He further noted that if the woman is to be blamed for the break-up of the marriage then lobolo is returned except for the lobolo to be retained according to customary law. The father may deduct some money or keep some cattle according to fair deductions in the event that it happens that the wife returns to her homestead and refuses to return to her husband, she is at fault for the break-up of the marriage, the father will have to return the lobolo after fair deductions. If she runs away and commits adultery with another man, the man who pays lobolo to marry her will have to pay that lobolo to her ex-husband, and this is how lobolo is returned; this lobolo is known as amabheka. According to tradition, the amabheka cattle must first return to bride’s family before being delivered to the ex-husband. Melusi Xulu’s presentation is problematic and concerning in that he argues there are criteria in which lobolo could be returned if the woman is at fault. However, what his presentation does not acknowledge is that lobolo is part of several rituals and practices that need to be completed for a customary marriage to take place. Secondly, Xulu is silent on the issue that lobolo is used towards the payment of the wedding. Furthermore, there is no legal precedence whereby lobolo was returned in the dissolution of marriage in a civil court apart from traditional courts. As mentioned previously in this chapter, traditional courts/council are prohibited by law to preside over any dissolution of customary marriage. This would go beyond their jurisdiction. Xulu’s presentation is important in that it perpetuates the idea that the dissolution of customary should be based on the return of lobolo if the woman is to be blamed for the breakdown in the marriage. Presentations such as these are contentious in that it reduces customary marriage to lobolo negotiations rather than all the ritual and ceremonies involved in it. Scholars such as Bennet (2004) have stated that, “In customary law the central issue in divorce proceedings is

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refund of bride wealth, an obligation taken so literally that the husband could demand the return of the same cattle he had originally given. If they had died in interim, the defendant could settle the claim with a cash equivalent”. However, since traditional courts cannot adjudicate on the dissolution of marriage this practice of the return of lobolo as a dissolution of marriage is problematic and needs to be interrogated further. Practices such as the return lobolo are concerning and raise a number of challenges to women affected by it.

Concerns Arising from the Practice of ukukhetha (Return of Lobolo) A number of issues emerge from this practice, and chief among them is the prejudice that is suffered by women. Furthermore, it may be argued that women who come from poor families who are unable to return the lobolo may be forced to stay in abusive marriages or marriages that have irretrievably broken down, where the relationship between the two parties has reached a state of disintegration to an extent that “there is no reasonable prospect of the restoration of a normal marriage relationship between them”. Secondly, most communities living and working in rural areas consider ukukhetha as the dissolution of a customary marriage. As a result, others proceed to marry again without having approached the courts and divorced in terms of the Divorce Act 70 of 1979, as stipulated in Section 8 of the RCMA. Thirdly, the patriarchal nature of traditional courts inherently disempowers women and tends to be insensitive when it comes to matters facing women. For women to bring matters before the court, they need a man in their family to be their representative rather than their own. Fourthly, by ruling on this matter the traditional courts raise several questions about why specifically lobolo is given such significance than other parts of the rituals and ceremonies of customary marriage let alone the contributions that the woman has made throughout the subsistence of the customary marriage. As mentioned before, the Act acknowledges that lobolo is part of the ritual and ceremonies of customary marriage. Therefore, the question then arises that why specifically lobolo is returned but not the gifts that were exchanged by both families during the ceremony and rituals. As mentioned before in this chapter, lobolo in some cultures is used to pay for the preparations that go into wedding, for example the gifts, food and tent hire. Lastly, since the negotiation of lobolo is conducted by

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male elders of both families, it is concerning that the woman has to first consider whether her family has the means to return the lobolo when and if she decides to dissolve the customary marriage even though she had no say in the amount that was agreed upon by both parties. As mentioned in this chapter, women continue to make use of the traditional justice system as means to seek justice. Therefore, it is imperative that the people dispensing justice are equipped because the decisions they make have a real impact on the lives of the women who appear before them. It is crucial that when government institutes training programmes of traditional leaders and council members to emphasise and reiterate the jurisdiction traditional courts have, meaning these courts cannot adjudicate on matters such as the dissolution of marriages through the return of lobolo. Moreover, women in rural areas need to be informed of their legal rights in choosing to seek justice in traditional or civil courts. The recognition of the traditional justice system has been crucial to women living in rural areas; however, its lack of sensitivity towards women puts them at a disadvantage since they utilise these courts.

Conclusion The Recognition of Customary Marriages Act 120 of 1998 is considered one of the most progressive legislations regarding the empowerment of women in customary marriages. However, it has several shortcomings. Its silence on lobolo is concerning since it leaves room for interpretation. Furthermore, its silence on the matter of lobolo has empowered traditional courts and/or leadership to make rulings on lobolo in the dissolution of customary marriages. Even though these courts should not be presiding over the dissolution, of customary marriages, they still do and the affected parties are of the view that their decisions are lawful and binding. The rulings on the return of lobolo in the dissolution of customary marriages have been inconsistent and unfair to women who have appeared before the court. These decisions have had a negative and real impact on women, and so far this practice has not been challenged in the courts. If this practice continues without being challenged, women who use the traditional justice system to seek justice will continuously face prejudice. That said and while the traditional justice system has shortcoming, it is important for people living in rural areas and therefore needs to be reformed. Mungwari and Stofile (2019) have argued that one cannot underestimate the critical role that

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these courts play as custodians of culture and in dispensing restorative justice in rural South Africa. Therefore, the issue of ukukhetha and the impact it has on women need to be reviewed and systems put in place that address its prejudicial nature against women.

References Bennett, T.W. 2004. Customary law in South Africa. Lansdowne: Juta and Company. Constitution of the Republic of South Africa, Act 108 of 1996. Curran, E., and E. Bonthuys. 2004. Customary law and domestic violence in rural South African communities. Johannesburg: Centre for the Study of Violence and Reconciliation. Divorce Act 70 of 1979. Dlamini, C.R.M. 1983. A Juridical Analysis and Critical Evaluation of Ilobolo in a Changing Zulu Society. Unpublished LLD Thesis, University of Zululand. Dlamini, C.R.M. 1999. The ultimate recognition of the customary marriage in South Africa. Obiter, 14–40. Freddie, K., and M. Koketso. 2013. Law and traditional justice system in South Africa: A hybrid of historical and constitutional discourse. Journal of Global Peace and Conflict 1 (1): 49–65. Gumede v President of the Republic of South Africa 2009 (3) SA 152 (CC). Heaton, J. 2010. Customary marriages in South African Family Law, 3rd ed. Durban: LexisNexis. Iyi, J.M. 2016. Fair hearing without lawyers? The Traditional Courts Bill and the reform of traditional justice system in South Africa. The Journal of Legal Pluralism and Unofficial Law 48 (1): 127–152. Kariuki, F. 2007. African traditional justice systems. The Asia Pacific Journal of Anthropology 8: 75–91. Khunou, F.S. 2011. Traditional leadership and governance: Legislative environment and policy development in a democratic South Africa. International Journal of Humanities and Social Science 1 (9): 278–290. Koyana, D.S. 1995. The indigenous constitutional system and the role of the customary courts today. Paper presented at the Constitutional Assembly Public hearing on Traditional Authorities, Cape Town, May. Koyana, D.S. 1997. Customary law and the role of the customary courts today. In Forum Consultus (pp. 126–128). Maloba v Dube and Others (08/3077) [2008] ZAGPHC 434 (23 June 2008). Legal opinion dated 5.11.2001, given by the Chief State law Adviser to the Dept. of Home Affairs, under reference 415.2001, and the decision of Mayelane v Ngwenyama and Another [2010] JOL 25422 (GNP).

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Mungwari, P., and W. Stofile. 2019. Advocating for the Transformation of Traditional Justice Systems to better respond to and uphold the rights of women who experience Gender Based Violence (GBV). Johannesburg: Tshwaranang Legal Advocacy Centre. Nanima, R.D. 2018. A missing link in the Traditional Courts Bill 2017: Evidence obtained through human rights violations. South African Crime Quarterly 65: 23–31. Ndulo, M. 2011. African customary law, customs, and women’s rights. Indiana Journal of Global Legal Studies 18 (1): 87–120. Nkosi, T. 2013. The ending of a customary marriage: What happens to the ilobolo? Published in De Rebus in 2013 (Nov) DR 36. Nkosi, B. 2018. Customary Marriages: Don’t just separate, make sure you divorce. Independent online. Available at: https://www.iol.co.za/the-star/ news/customarymarriages-dont-just-separate-make-sure-you-divorce-177 73885. Accessed on the 13 April 2021. Ozoemena, R.N., and M. Hansungule. 2009. Re-envisioning Gender Justice in African Customary Law Through Traditional Institutions. Phillips, A. 1953. Survey of African Marriage and Family Life, xi–xvii. Abingdon: Routledge. Posel, D., Rudwick, S., and Casale, D. 2011. Is marriage a dying institution in South Africa?: Exploring changes in marriage in the context of ilobolo payments. Agenda: Empowering Women for Gender Equity 25 (1): 102–111. Ramuhovhi and Others v President of the Republic of South Africa and Others [2017] ZACC 41. Recognition of Customary Marriages Act, 120 of 1998. Rautenbach, C. 2014. Traditional Courts as Alternative Dispute Resolution (ADR)-Mechanisms in South Africa. In The Status Quo of Mediation in Europe and Overseas: Options for Countries in Transition (Verlag Dr Kovac Hamburg 2014), 288–329. Rautenbach, C. 2015. Legal reform of traditional courts in South Africa: Exploring the links between UBUNTU, restorative justice and therapeutic jurisprudence. Journal of International and Comparative Law 2: 275. Rugege, S. 2003. Traditional leadership and its future role in local governance. Law, Democracy & Development 7 (2): 171–200. Southon v Moropane (14295/10) [2012] ZAGPJHC 146 (18 July 2012). Soyapi, C.B. 2014. Regulating traditional justice in South Africa: A comparative analysis of selected aspects of the Traditional Courts Bill. Potchefstroom Electronic Law Journal/potchefstroomse Elektroniese Regsblad 17 (4): 1441–1469. Traditional Leadership and Governance Framework Act 41 of 2003. Whitehead, A., and D. Tsikata. 2003. Policy discourses on women’s land rights in Sub-Saharan Africa: The implications of the re-turn to the Customary. Journal of Agrarian Change 3 (1–2): 67–112.

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CHAPTER 7

Conclusion: Supporting Justice on the Ground in Southern Africa Cori Wielenga

Introduction Justice on the ground is being practiced in the absence of, or together with, state-led justice systems across the African continent. The driving question is: How do we support justice on the ground without distorting, damaging or substantially changing it? How do we support the complex and multi-varied roles that women play in resolving conflicts and restoring social harmony? Many international and local non-governmental organisations (NGOs), government departments and other international, national and local actors attempt to intervene in rural and peri-urban communities in a variety of ways. There are interventions addressing humanitarian needs, providing basic services or engaging in peacebuilding, conflict resolution, development, health, education and so on. Increasingly, we

C. Wielenga (B) Centre for Mediation in Africa, Department of Political Sciences, University of Pretoria, Pretoria, South Africa e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 C. Wielenga (ed.), African Feminisms and Women in the Context of Justice in Southern Africa, https://doi.org/10.1007/978-3-030-82128-9_7

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are aware that these interventions need to be locally driven in order to be sustainable. A lot of attention is being paid to how we can avoid top-down, imposed interventions, yet there is still little effort made to understanding how community-based practices actually work. Lip service is paid to the ideas of local agency and local ownership, but there is still the assumption that ‘local’ is somehow ‘less than’ or ‘backward’. In our engagements with local government officials in relation to justice on the ground, our findings have been that they have little understanding or interest in how community courts function or the role that they play in the community. State-led justice actors never refer cases to community courts or to community or traditional leaders. Similarly, we have found that international or national NGO actors do not always take seriously what people in communities are already doing. The starting point for international and national NGOs tends to be that those in rural and peri-urban communities need to be trained in gender sensitivity and human rights. Yet we would recommend that it is those of us coming from outside of the community that need to be trained in how a given community functions (this being unique to every community). The way to support justice on the ground is to understand it well, and this requires traditional leaders, healers, community leaders and so on to train all those of us coming from ‘outside’, including national NGOs and government departments, in how they function. This is a critical starting point if we are to take local agency and local ownership seriously.

Reflections on the Communities As we spent time in communities in Southern Africa, we were well aware of the many challenges women face as a result of their gender. Domestic violence, direct violence against women and systemic violence were evident in each of the communities. At the same time, it was evident to us that it is often women who are the drivers of justice, whether in Okombahe, Namibia, Mudzi, Zimbabwe or Gueguegue, Mozambique. It was also evident, if we return to the discussion of African feminist theories in Chapter 2, that women and men constantly use different strategies to negotiate their position in a given society. As Bae et al. and Murambadoro describe in Chapters 3 and 4 of this volume, respectively, some women may choose to ‘suffer for the household’ so that their partner can remain employed and continue to support the family. We

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were constantly reminded of the relational emphasis of justice practices on the ground: the fact that the well-being of the whole community remains pivotal, over and above individual accountability within a punitive system. We also gained the sense that women and men were cooperating with one another to achieve certain things, rather than women seeing themselves as fundamentally opposed to men. As Murambadoro discusses in Chapter 4, networks of relationships in Southern Africa are held together by hunhu (often seen to be similar to the term ubuntu in South Africa), which places emphasis on ‘human dignity as integral to wholeness or oneness of all life and locates the individual human within the larger community’. From this point of view, it is perhaps less about asserting the rights of individuals and more about how to restore the dignity of people within a community. The fact that many of the cases brought to family and community courts had to do with personal insults, which could escalate towards direct violence, points to the central importance of relationships and the necessity of maintaining the dignity of the other. When one treats another with a lack of respect, thereby compromising their dignity, this becomes an offence that needs to be addressed by the community. It is these kinds of issues that are fundamentally misunderstood or ignored by a legal system that is interested in crimes against the state (and its laws), rather than the breakdown of relationships between people. Underpinning all of this is an awareness that justice cannot be understood narrowly, in terms of individual accountability for a wrong committed, but is broadly related to the well-being of the whole community. If we understand justice in this way, we can see the central role women play in not only resolving conflicts, but in weaving the very fabric that holds a community together, socially, economically and even politically.

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Recommendations to National and Local Government and Civil Society Organisations1 Drawing on our encounters with people in communities in Southern Africa and local government officials, we make the following recommendations: 1. Develop policies and approaches that acknowledge diverse systems of justice and their practices The current universalist model creates a unitary system that forces local communities to conform to international standards that fail to consider local realities. This results in the development of frameworks that provide irrelevant and inappropriate solutions. Different justice practices (e.g. community courts, national courts) can meet different needs. The state-led national justice systems are, for the local communities involved, not the primary system of justice but rather an alternative judicial system. Local systems of justice are not only valid and legitimate, but are also central. More funds need to be carefully and thoughtfully directed towards the support of community initiatives and legitimate local judicial systems. This would include understanding and accepting the norms and values underlying local systems of justice (including the emphasis on the social contract between people, rather than the contract between an individual and the state, the value of paying compensation rather than serving a jail sentence, and an understanding of justice that incorporates the wholeness, healing and well-being of a whole community), and the inclusion of practices such as cleansing rituals as meeting justice needs. This would also include the recognition that local systems of justice can take place within a legal framework which provides opportunities for cases to be referred from one system of justice to another, without prejudice, including from the magistrate’s court to the community court. Local legal systems need to be constitutionally recognised. Likewise, it is necessary to put institutions in place 1 These recommendations, in part, emerged from workshops held with the Dutch Embassy in Pretoria and the Institute for Justice and Reconciliation, Cape Town in 2018, in which our findings from the field were workshopped in order to develop recommendations for the reform of national and international justice systems.

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that allow people to choose which system—international, national, local—will serve them. 2. Be aware of how dominant/Western-centric concepts of justice are reinforced through language Language is a powerful tool that shapes people’s thinking because of the cultural meanings of words. It is, therefore, important to interrogate the usage of dichotomies and terms such as ‘traditional’ versus ‘modern’, as well as their associated connotations. Some labels attach historic associations to practices that remain relevant to people in local communities today. In addition, such labels imply that Eurocentric ideas are ideal models to emulate. Instead, we need to draw on words and cosmologies from local systems themselves. Concepts are also variable within a language and cultural system, and the use of the English language in interventions can have implications for how justice is imagined and understood. 3. Place an emphasis on first improving the type of justice (its fairness, effectiveness and local legitimacy) over building justice institutions with low levels of support and legitimacy Take an incremental approach to empowering justice systems at the local and regional level over developing a unitary justice system. This will allow for regional diversity in justice forms and practices that are locally relevant. The meanings of concepts such as legitimacy, fairness and effectiveness vary from one culture to another. We need to draw on local perceptions of these concepts if we want our actions to be perceived as legitimate. A bottom-up dialogue on the meaning of justice and its related concepts will greatly improve the legitimacy of the process. Legal practitioners need to be trained to have a better understanding of the norms and values of the context in which they operate, as well as regarding how customary laws and courts function. Committees of local leaders (including chiefs, for example) can provide such training while advising civil society and local government actors on how to improve the process of justice delivery. In other words, rather than having the government and NGOs training local leaders, local leaders need to train them on how their communities function optimally. Legal practitioners’ education about local contexts makes it easier to enable the referral of cases across justice systems.

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One way of allowing for greater movement between systems is by introducing reporting mechanisms into the local legal system. The state or an international actor could, for example, provide support for the training and maintenance of a clerk who makes sure that all the cases that appear before the community court are recorded according to specific standards and specifications, and the information passed on to the magistrate’s court. This would allow the magistrate’s court to gain a better understanding of how community courts function and the kinds of cases that are addressed. The reporting of cases by the community court to the magistrate’s court already occurs in Namibia, but unfortunately does not seem to have resulted in a meaningful understanding of the potential these community courts hold in meeting justice needs. In this case, more education is needed for legal practitioners and other actors involved in these court systems. 4. Seek to understand local justice systems intensively, on their own terms, before suggesting how to change or improve them Challenge existing prejudices against local justice systems and avoid knee-jerk critiques of them based on external or prevailing gender or feminist discourse. These systems are often seen to be male-dominated, gender-biased, weak in protecting human rights and vulnerable to corruption, nepotism and manipulation, whereas in reality they may be all or none of these things, depending on numerous unique factors. Each system of justice practices needs to be understood on its own terms, in its own context. Continuously consult and engage with local residents instead of conducting once-off visits during research projects. Since the subject matter is too complex to be grasped within a single visit, it is better to carry out multiple visits and consultations in both rural and urban communities. This will create social bonds and familiarity between researchers and communities. This approach encourages people to become willing to sharing their stories. Organise a feedback mechanism between community leaders, nongovernmental organisations, national government and the international community: this will help to continuously adapt and improve the whole process. Allow communities the freedom to determine their own action timelines. International organisations and NGOs have been known to use their

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financial power to insist on mediocre, hastily-implemented solutions to accommodate their funding and time constraints. Instead, they should do away with quick fixes by supporting local communities without imposing ideas on them. Local residents should be allowed to meet their own justice needs at a self-determined pace, using methods they deem appropriate. Protect human dignity, agency and cultural differences. The independent thinking capacity of local communities should be acknowledged and respected. Furthermore, local communities’ own measurements of success should be respected. Re-establishment of community harmony, compensation in terms of community service and acknowledgement of guilt by the perpetrator(s) may be of greater value than punishment, blame or imprisonment.

Closing Thoughts As Bae et al. write in Chapter 3, we might well be perpetuating injustices in a community if we dismiss justice practices out of hand on the grounds that they are ‘backward’, ‘primitive’ or ‘patriarchal’. These kinds of assessments are often made by people who have never spent significant time in a community or participated in a community court hearing. Justice practices on the ground are the result, as Becker (2007) so clearly argues, of both exogenous forces and local agency. They have been disrupted by slavery, colonialism, apartheid, urbanisation, globalisation and so on. They also reflect continuities with a deep past in terms of the norms and values that continue to underpin them. They have changed and evolved, and against all odds, remained resilient, legitimate and popular in the eyes of community members. They reflect the day-today lived realities on the ground and facilitate the kind of interdependent living necessary for communities that struggle for their survival, often in the absence of the state. Justice practices on the ground, with all their faults and limitations, are nevertheless able to intervene when relationships are at risk, often well before they escalate to the level of a more serious act of violence or other criminal action. As Bae et al. argue: It is all too easy to presume what a social structure might be like without considering its function on the ground. Such presumptions and imaginations have fuelled many ineffective top-down approaches to development and hard definitions of ‘justice’. Without an experience of the environment,

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its deprivation, and the many impactful actors on the ground, especially women, the disparity between deliberations at the top and everyday concerns on the ground seldom converge in alignment.

In order to ‘converge in alignment’, what is needed is a deep understanding of lived realities on the ground, the complex dynamics between women and men, and the numerous people, including both women and men, who play a part in the well-being of the whole community through ‘justice on the ground’.

Index

A Africa, 2–8, 11, 21, 27, 30, 31, 33, 44, 84, 108–110 African modernities, 6 Assault, 43, 47, 69, 77, 94

B Boane, 12, 16, 76, 77, 84

C Coloniality, 6, 20 Community, 1–3, 5–16, 19–21, 27–29, 33–35, 37, 43–63, 65–73, 76, 77, 79–86, 90–95, 99, 102, 107–114 Community court, 2, 4, 12, 13, 35, 36, 41, 43–49, 51, 53–57, 59–61, 63, 65, 72, 73, 108–110, 112, 113 Community leaders, 2, 10, 58, 81–84, 108, 112

Compensation, 48, 54, 61, 66–68, 72, 79, 110, 113 Conflict, 2, 4, 5, 9–13, 16, 46–48, 51–56, 61, 67, 72, 73, 77–84, 86, 107, 109 Conflict resolution, 9, 11, 45, 46, 48, 56, 76, 78, 80–82, 86, 107 Customary law customary marriage, 14, 95–101 customary practices, 34, 55, 68 customs, 46, 47, 91, 94–96, 100 dissolution of customary marriage, 14, 90, 97, 101, 103 lobolo/lobola, 14, 68, 90, 97, 102, 103 ukukhetha (return of lobolo), 99–102, 104

D Damara, 13, 42–44, 46–50, 53 Decolonial/decoloniality, 6, 13, 20 Dignity, 43, 65–67, 71–73, 77, 109

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 C. Wielenga (ed.), African Feminisms and Women in the Context of Justice in Southern Africa, https://doi.org/10.1007/978-3-030-82128-9

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human dignity, 28, 70, 71, 113

E Employment, 21, 34, 48, 49, 53, 56, 77 Erongo, 12, 13, 16, 43, 44

F Families, 2, 10, 13, 14, 21, 30, 32, 33, 35, 36, 43, 48, 51, 54, 58–62, 64–73, 76–81, 83–85, 90, 96–98, 100–103, 108, 109 extended families, 14, 21, 36, 78, 82, 85, 86 Feminism African feminisms, 3, 12, 13, 22, 23, 26, 28–31, 37 feminisms, 20, 21, 23–25 indigenous feminisms, 23, 26, 29 motherism, 32 womanism, 32, 33

G Gender gender based violence (GBV), 35–37 gender discourse, 11 gender dynamics, 3, 4, 12, 14, 34, 50 Gueguegue, 14, 29, 76–86, 108

H Harmony, 34, 36, 63, 69, 71, 73, 76, 78–80, 83, 86, 113 balance, 76, 79, 83, 86 social harmony, 48, 54, 67, 72, 73, 79, 107 Headperson, 62, 65, 73 headman, 66

headwoman, 46, 50, 51 Household, 20, 32, 35, 49, 50, 53, 54, 61, 62, 66, 69, 70, 77, 79, 80, 85, 86, 108 Hurungwe District, 57, 58, 60, 62, 63, 72, 73 I Indigenous culture, 91 Insults, 13, 42, 43, 77, 109 J Justice justice as a value, 28, 62, 80, 86, 110 justice on the ground, 1, 2, 4, 5, 7, 8, 10, 12–15, 19, 21, 22, 28, 29, 34, 35, 44, 48, 53, 55, 58, 67, 72, 75, 76, 82, 85, 87, 107, 108, 114 justice practices, 2–10, 13–15, 28, 29, 35, 37, 76, 86, 109, 110, 112, 113 relational justice, 2, 37, 55, 109 L Lived experiences, 4, 15, 22, 23, 27, 29, 32, 34, 56 Local agency, 11, 108, 113 Local ownership, 108 M Magistrate’s court, 5, 12, 41, 43–45, 47, 48, 53–56, 65, 66, 75, 76, 82, 84, 110, 112 Modern, 5, 6, 31, 111 Modernity/modernities, 4–6, 11, 47 Mozambique, 4, 5, 10–12, 14, 16, 35–37, 57, 75–78, 81, 83, 84, 86, 108

INDEX

Mudzi District, 12, 13, 27, 29, 57, 61, 63, 65, 67, 70, 71

N Namibia, 4, 5, 7, 8, 10–13, 16, 35, 37, 42, 44–46, 48, 50, 53, 56, 108, 112 Neighbourhood, 76, 79, 81, 84 Norms, 5, 7, 9, 33, 61, 62, 66, 71, 76, 80, 82, 86, 90, 94, 110, 111, 113

O Offender, 48, 61, 66, 67, 70, 82, 84 Okombahe, 5, 36, 41–56, 108 Omaruru, 5, 29, 41, 43–47, 53, 55

P Patriarchy/patriarchal, 3, 6, 11, 12, 14, 19, 21–23, 26, 27, 29, 30, 32, 33, 35, 54, 55, 76, 90, 94, 102, 113 Peri-urban, 1–3, 5, 10–12, 14, 15, 28, 29, 37, 58, 77, 107, 108

R Relational networks interdependence, 2 intersubjectivity, 34, 37, 44, 51, 53–55 relational bonds, 97 relationality, 2, 7, 34, 37, 44, 51, 53–55 relationships, 2, 8, 76, 109 Relationships, 2, 4, 8, 10, 12, 24, 30, 36, 65, 66, 70, 71, 76, 78, 82, 86, 87, 95–97, 102, 109, 113 Religious leaders, 10, 36, 83

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Rural, 1–3, 5, 10–12, 14, 15, 21, 22, 28–31, 33, 34, 37, 46, 58, 60, 62, 65, 89, 90, 92–94, 98, 102–104, 107, 108, 112 S Social contract, 15, 110 South Africa, 7, 10, 11, 14, 45, 59, 83, 89–100, 104, 109 T Traditional, 2, 4, 8, 11, 19, 20, 28, 33, 45, 46, 49, 50, 55, 62, 68, 75, 81, 89–93, 99, 103, 111 Traditional court, 6, 11, 14, 89, 91–94, 100–103 Traditional healers, 9, 10, 76, 84 Traditional leaders/authorities, 8–11, 41, 42, 45–48, 51, 55, 58, 61, 62, 65, 70, 81, 91–94, 97, 99, 101, 103, 108 chiefs, 8, 10, 11, 45, 47, 51, 60–62, 80 U Ubuntu/unhu, 70, 72, 109 V Values, 5, 7, 29, 34, 37, 48, 50, 55, 61, 62, 66, 67, 69–73, 76, 80, 85, 86, 95, 110, 111, 113 Violence, 4, 5, 26, 27, 35, 36, 43, 53–56, 65–67, 77, 84, 85, 108, 109, 113 Z Zimbabwe, 4, 5, 10–13, 16, 20, 27, 35–37, 57–62, 108