Women bear a disproportionate brunt of health crises, environmental disasters and gender-based violence. Unfortunately, the current global pandemic could follow this pattern—having devastating implications for women’s access to justice. What are judiciaries and governments doing to address these gender-based challenges?
By J. Jarpa Dawuni, Ph.D.
This blog is part of the Women, Justice and Law Series : The Feminine Face of COVID-19
We invite global perspectives from guest bloggers. You may send your entry here.
The world is witnessing a volatile and highly dynamic health crisis, prompting the World Health Organization (WHO) to declare the coronavirus and COVID-19 a pandemic on 11 March 2020. The pandemic has drastically altered the way of life at the individual, communal, national and global levels. Governments are having to take drastic measures to curb the spread of the pandemic as increasing fatalities and new cases of infections keep mounting globally.
In early February, initial reports emerging out of the continent of Africa indicated low rates of infection and deaths from the coronavirus (COVID-19). Partly fueled by misinformation, the situation across Africa led some to hypothesize that Africans were immune from the virus. With increased awareness, more testing supplies and social awareness, the reports emerging now show increasing numbers of reported infections and deaths across the continent.
Across Africa, countries are adopting different measures to keep above the curve in order to reduce the rate of infections and possible fatalities. Extreme circumstances such as what the world is currently witnessing, calls for extreme measures. The fundamental question is how governments will balance the need to adopt extreme measures with the duty to respect and adhere to the rule of law, constitutional freedoms and universal human rights standards.
As the pandemic unfolds, heads of judiciaries are constantly weighing options regarding the best decisions to make. As of this writing, the Chief Justice of South Africa is monitoring the pandemic and weighing the option of closing the courts if the situation worsens. In Uganda, the Chief Justice has issued directives to suspend court hearings and appearances. Similar directives have been issued in other jurisdictions such as Kenya, Ghana and Ethiopia. At the Africa regional level, Justice Sylvain Oré, President of the African Court on Human and Peoples’ Rights (ACtHPR) issued a statement on Monday, 23 March, 2020 suspending the 56th Ordinary Session of the court and making “non-essential” staff work remotely, while some staff work at the Court on a rotation to promote social distancing. At the Africa sub-regional level, Justice Edward Asante, President of the Economic Community of West African States (ECOWAS) Court of Justice issued a communiqué suspending court hearings
What does this fluid and highly evolving global pandemic mean for judiciaries around the world? Specifically, what are the implications for women’s access to justice? Under “normal” conditions, access to justice for most women is limited and outright unavailable in some instances. This pandemic brings new challenges to judiciaries— and applying a gendered lens to these challenges, further highlights extra layers of concerns for women’s ability to safely, promptly and efficiently access justice. Judiciaries will have to find innovative ways of handling cases of recurring domestic violence, rape, child custody, divorce, right to alimony and property, among others.
As courts around the world are racing to use technology for hearing cases remotely, a major concern is the exacerbation of existing inequalities, where lack of access to, or inadequate technology prevents many women from having their cases resolved expeditiously. How well will teleconferencing be for hearing pleadings and presenting evidence on gender-related violence cases? What happens in jurisdictions where the judiciary does not have the capacity to use such tools?
The need to decongest public spaces, such as markets, places of worship and other public gatherings such as funerals have been adopted in some countries. What are the implications of such lockdown measures and market closures for women who form a high proportion of the informal sector across Africa? What is the impact of closing public shelters for women who are victims or survivors of domestic violence? Will governments or organizations providing such shelters and counseling services be able to provide safe, alternative spaces for women? What will the impact of restricted public movement mean for women who need prenatal care, and more so those who may be in labor and need urgent medical care to ensure a safe delivery? What human rights violations come with these closures and restrictions on women who are often the majority in such spaces and what will judiciaries and the justice sector do to address these violations when they are brought to court?
This pandemic has multiple and intersecting outcomes, lending new challenges and opportunities for judiciaries. Applying a gendered lens signals extra layers of concerns for women’s ability to access justice promptly and efficiently. Judiciaries will have to devise methods for providing access to fast, efficient and responsive justice in instances of gender-based violations. Around the globe, courts are adopting different approaches in classifying limited in-person appearances in “exceptional”, or “urgent” cases. The list of what constitutes “exceptional” or “urgent” varies widely. Will gender-related cases will be considered “exceptional” or “urgent” enough by judicial administrators?
As courts around the world are racing to use technology for hearing cases remotely to promote social distancing, a major concern is the exacerbation of existing challenges of access to justice for women, where lack of access to, or inadequate technology will prevent many women from having their cases resolved expeditiously. Will teleconferencing be suitable for hearing pleadings and presenting evidence on gender-related violence cases? What happens in many jurisdictions across Africa where judiciaries lack the capacity to use such technological tools?
“Necessity is the mother of invention”, and despite a steep learning curve, the pandemic presents an opportunity for judiciaries to use existing, or in some situations, adopt new technological tools for working remotely in handling court hearings where appropriate, to lessen the burden on litigants, lawyers, court staff and increased caseloads on judges.
It is essential for all judicial administrative changes to take into account the gendered nature of existing laws and institutional practices which sometimes maintain, reproduce or exacerbate gender inequalities.
The highly dynamic nature of this pandemic requires open and constant communication within judiciaries and across judicial networks such as the UNODC Global Judicial Integrity Network on well-informed strategies to balance citizen needs with national priorities. Now more than ever, judiciaries must abide by the Bangalore Principles of Judicial Conduct and other international and national laws that seek to promote the rule of law, provide access to justice, ensure human rights, and enforce judicial standards during and after this crisis.
Access to justice for some women is a matter of life and death—access to justice for women in a global pandemic cannot be put on hold. Hopefully judiciaries will be cognizant of women’s needs and take extra measures to address the related challenges.
***Portions of this blog entry have been published under the UNODC Judicial Integrity Network opinion series available here.