Document - Sierra Leone: No one to turn to: Women's lack of access to justice in Sierra Leone (includes amendments)
No one to turn to: Women’s lack of access to justice in Sierra Leone
“I couldn’t go to the chief [as] he would not have taken my matter seriously; I didn’t go to the local court [as] I had no money. If human rights had not been there I don’t know what I would have done. I suppose I would have left it to God.”
Amnesty International considers the discrimination women suffer and their lack of access to justice in Sierra Leone to be of serious and urgent concern. This briefing paper provides an overview of the barriers that women face in accessing justice that Amnesty International found on a recent visit and includes recommendations to address them. The briefing paper, to be followed by a longer report in 2006, specifically targets participants of the Stakeholders Conference on Human Rights, being held in Freetown, Sierra Leone from the 6-8 December 20051. The Conference brings together the Government of Sierra Leone, United Nations agencies, donors, international organizations and members of civil society to discuss the critical human rights issues facing Sierra Leone. These discussions will feed into the National Human Rights Action Plan and into the work of the Human Rights and Rule of Law component of the United Nations Integrated Office in Sierra Leone (UNIOSIL) - due to start operations in early 20062.
Many cultural, legal, and social factors impact women’s access to justice. Justice is compromised by discrimination in the law, lack of laws to protect women against gender based violence, discriminatory social attitudes in the family and wider society, as well as discriminatory attitudes and practices of officials administering the law. Furthermore it is exacerbated by a general lack of legal advice and assistance.
Women face discrimination and inequality in laws, in custom, and in rulings by Chiefs and Local Court officials primarily in marriage, divorce, inheritance, and property. The consequences are devastating for women as it further entrenches many into poverty, forces some to stay in violent relationships, contributes to homelessness, and severely compromises women’s ability to properly care for themselves, and their children. Not only are laws that relate to matters in the domestic setting discriminatory, but there exists little protection in the law against gender based violence. By promoting laws, which protect rather than subordinate women, and taking concrete steps which aim to improve women’s access to justice, Amnesty International believes Sierra Leone’s overall development will benefit.
Customary law in Sierra Leone is unwritten and based upon deep rooted social practices that coexist with the formal legal system. Customary law, recognized and relevant to 85%3 of the local population is based on traditional beliefs and attitudes and administered predominantly by men. Traditional practices dominate and tend to deprive women of their human rights or silence them when their human rights are not respected. While discrimination on the basis of sex is prohibited in Sierra Leone’s constitution, this protection is undermined by condoning discrimination under customary law.
Laws governing marriage, property, and inheritance impacts women in every aspect of their lives. Yet women find the process of pursuing remedies related to these human rights confusing and inaccessible. Further, these laws are unwritten, not systematically recorded, influenced by region, religion, and differ depending upon the individual administering it. Women’s unfamiliarity with laws and procedure leave a lot of room for manipulation by those administering the law. Amnesty International found women’s experiences with the Local Courts and Chiefs often resulted in unlawful rulings, humiliation, and at times, imprisonment and trumped up charges and exorbitant fines of the women seeking justice.
Recognition of the link between women’s equality and the reduction of poverty is highlighted in the Poverty Reduction Strategy Paper which the Government of Sierra Leone has committed to over the next several years and highlights that the “focus needs to be on gender equality and empowerment as well as promotion and protection of the human rights of women in the process of achieving poverty alleviation and sustainable economic growth”. Other commitments of the government include the adoption of the recommendations of the Truth and Reconciliation Commission which prominently feature women’s human rights including the repeal of all discriminatory statutory and customary laws. Some bilateral donors have taken steps to address this issue, for example the UK Department for International Development (DFID) has allocated £25 million over five years to reform the justice sector which may offer hopeful opportunities.
UNIFEM, the Ministry of Social Welfare, Gender, and Children’s Affairs and the International Rescue Committee have been working with the Law Reform Commission4 to develop a Women's Law Reform Agenda. These discussions have fed into the current draft laws on marriage, succession, sexual offences and inheritance, soon to be presented to Parliament by the Law Officers Department of the Attorney General and Ministry of Justice office. Consultations are currently being carried out on domestic violence legislation. Once the laws are passed in Parliament, a much greater challenge will be to change the prevailing local attitudes towards women’s human rights. The government’s reluctance to interfere is reinforced by a strong belief among Chiefs and some of the elders in the community that the government has no business interfering and changing cultural norms. Amnesty International believes this is the area that needs great commitment and attention by the Government of Sierra Leone, civil society, traditional leaders, and UN agencies.
Sierra Leone has ratified the Convention on the Elimination of all Forms of Discrimination (CEDAW) which guarantees equality before the law and the equal protection of the law, and ensures that women have effective remedies if their rights are violated. International law also obliges states to modify discriminatory social and cultural patterns of conduct. By failing to confront discrimination and practice Sierra Leone is violating these obligations.
Amnesty International notes that the Stakeholders Conference on Human Rights is a critically important forum to ensure that women’s human rights are prominently featured in the National Human Rights Action Plan and central to the work of the Human Rights and Rule of Law component within UNIOSIL due to start in early 2006.
The Legal System in Sierra Leone
The laws of Sierra Leone, as defined in Section 170 of the 1991 Constitution, comprises of the Constitution itself, along with laws made by Parliament, statutory instruments, the existing law, and the common law. The common law includes the English common law and customary law. English common law is institutionalized into the Judiciary headed by the Chief Justice, and comprises the Supreme Court, Appeals Court, and High Court which are the superior courts of jurisdiction. The Magistrates Courts constitute the inferior courts. These courts adjudicate criminal and civil matters under statutory and English common law.
Customary law, largely unwritten, are the rules and regulations that are applicable by custom and to particular communities in Sierra Leone5. Customary law is also defined as any rule, other than a rule of general law, having the force of law in any chiefdom province6. Common law which includes both English common law and customary law, as described above, is applicable throughout Sierra Leone except for Freetown where only English common law is applicable. In the instances where British Common law and customary law clash, the Sierra Leone Constitution mandates that British Common law supersedes.
The Local Court is the only institution permitted by the Constitution to adjudicate customary law under the Local Courts Act of 1963. The majority of the cases they preside over include marriage, divorce, debt, succession, and land tenure. There are 147 chiefdoms in Sierra Leone and each chiefdom has one to three Local Courts. They are presided over by a Court Chairman, Court clerk, a panel of elders and chiefdom police who act as marshals during court sessions. The Court Chairman is appointed by the Paramount Chief for three-year terms with final approval from the Ministry of Local Government and Rural Development. The Local Courts are administered by the Executive branch of the government through this Ministry. The Customary Law Officer, in the Law Officers Department in the Attorney General and Ministry of Justice Office, also part of the Executive branch of government, has the power to supervise the Local Court Chairperson and review the decisions made by the Local Court to ensure that they are fair. Lawyers are not allowed to appear in Court and the Judiciary currently has no role in how the Local Courts function. In general Paramount Chiefs and the elders in the community are considered to have the most power over how the Local Courts function which raises questions about their independence7.
Civil claims in family matters
The 1991 Constitution states equality before the law and equal protection for the law, by prohibiting the making of any law which is discriminatory. Chapter III Section 27 of the Constitution states that “no law shall make any provision which is discriminatory either in itself or in its effect”. However, this provision is qualified by subsection 4 of Section 27 which makes exceptions for, among other things, adoption, marriage, divorce, burial, devolution of property on death or other interests of personal law and in customary law. This means that discriminatory laws on such matters are not necessarily unlawful under the Constitution.
For example when a wife dies her husband inherits her entire property. However on the death of the husband, the wife inherits only a proportion of his property8. Moreover a wife has no right under law to ensure that the husband contributes financially towards the children while the family is living together. If the couple separates, the wife is eligible for support but only if he has deserted her. If she has left him or if they have decided to separate, she is not entitled to support9. Even then, the amount stipulated in the law for support for the children is grossly inadequate.
There are provisions in law on the surface provide for equal treatment of men and women, however have a discriminatory effect on women. For example, there is a restriction with regard to petitioning a divorce making it difficult to do so within the first three years of marriage. While this law is applied equally to men and women, it may have the effect of requiring a woman to stay with her husband who is abusing her because of the financial implication she would encounter if she left him. As another example, there is no minimum age of marriage. This fails to protect girls from forced marriage as it is common practice for girls, even as young as 10, to be forced to marry adults. Among the many human rights violations a girl may be subjected to when forced to marry an adult man, her ability to mature into an adult with dignity is compromised as she is deprived of her right to education.
Protections in criminal law
Despite that the Constitution provides for the right to life, liberty and security of person and stipulates that no person shall be subject to any form of torture or any punishment or other treatment which is inhuman or degrading, criminal law fails to protect women from domestic violence. It is widely accepted that a man chastise his wife, often translating into condoning or acceptance of domestic violence. In effect, unless the violence results in murder or serious wounding, criminal law is not regarded as applicable to the forms of violence which a husband may inflict on his wife. Since the domestic arena is where the majority of violence against women takes place, women are largely left without legal remedies. Involving police or the state in “family matters” is not regularly practised. Women are unlikely to take any steps that would break up the family as it would leave her and her children without financial means including possibly being denied any access to the joint property of the marriage. As a result, women often simply accept this human rights abuse and perceive it as natural and inevitable, thus not demanding justice10.
The Constitution states that customary law is part of common law of Sierra Leone but does not define it. The laws themselves are not written and the rulings are rarely recorded and so the population is forced to rely on what they understand as custom and the memory of Local Court officials to apply the law in good faith. Some of the customary practices that are understood as customary law relate to marriage, property, and inheritance. Customary law is supposed to comply with the national constitution and should not contradict enactments of Parliament or principles of natural justice and equity11. However customary law works in ways which are often discriminatory or which perpetuate violence against women.
For example, it is customary that if a husband dies his widow is required to marry the brother of her late husband in order to continue to have access to the property. In another example, if a woman marries she loses her rights to her parents’ property or any say in how it is administered. In cases of divorce, men are not required to pay compensation to the wife although in some communities she is required to pay back the dowry12 which was given to her family when she married.
In cases of sexual assault and rape the customary practice is for the families of the victim and of the perpetrator to settle these cases by compensating the victim’s family with money and/or goods. The main focus is to salvage the reputation of the victim’s family rather than bring the rapist to justice or provide redress for the victim and protect others who may be at risk. While Local Courts do not have jurisdiction in sexual assault and rape cases, families continue to bring them for settlement and the Local Courts continue to handle them. If the victim was previously a virgin there is a stiff penalty, usually a sum of money, that the perpetrator is supposed to pay to the victim’s family and the Chief; however if she was not previously a virgin, a lesser penalty is normally imposed. In some Muslim communities family pressure is put on the victim to marry the rapist, since her chances of getting married are greatly reduced by the fact that she is no longer a virgin13. However, with recent improvements in the training of Local Court officials, particularly with regard to the scope of their jurisdiction, it appears in some district towns that they are now declining to exert jurisdiction in such cases and are increasingly referring them to the Magistrates courts to be dealt with under the criminal code14.
Administration of customary law by Local Courts and Chiefs
The majority of the cases where women appeared before the Local Courts and Chiefs were family related cases, often brought by their husband or other relatives. It was less often that women appeared before the Local Court or Chiefs on their own initiative in matters of their own protection or remedies. Women in general underutilize Magistrates Courts due to the long distance, the expense, and ignorance of them and their procedures. Appearing before the Chiefs and Local Courts, at times was the only option for women, despite the feeling that their case would not be taken seriously, would be treated unfairly, and would be expensive. Cases involving women and Local Courts and Chiefs included trumped up charges and exorbitant fines against women themselves, unlawful rulings, humiliation, and even, imprisonment of women seeking justice.
Confusion around where one mechanism’s jurisdiction begins and ends also leaves a lot of room for manipulation and impacts upon women’s access to justice. This is true for both women and for those administering the system, as it is unclear where the boundaries of the different jurisdictions lie. Amnesty International found that external assistance from paralegal organizations was an effective way in which women could access this system and avoid some of the manipulation and unfairness that normally took place. In some cases Chiefs were unlawfully imposing fines and detaining people in so called “native” prisons15. Under the laws of Sierra Leone, Chiefs are not allowed to adjudicate cases, impose fines or imprison people. The Local Courts have no power to impose detention leaving only fines as possible punishments. Also it was reported that Local Courts, sometimes also adjudicated cases that fell outside their jurisdiction as in cases of rape.
In addition to family disputes and similar matters, cases involving women accused of witchcraft were brought to Chiefs and Locals Courts. Little information is available as to how they attempt to rule on these cases, because there is a lack of clarity in law as to the content of such offences and their rulings are not recorded systematically. While the Customary Law Officer in the Law Officers Department of the Attorney General and Ministry of Justice office has the power to review cases there is only one officer allocated for the entire country. He is unable to carry this task out systematically. Likewise despite a Constitutional provision that provides for the right to appeal Local Courts’ decisions before a Magistrate’s Courts, such appeals are rarely carried out.
Amnesty International believes that more external assistance, including paralegal or legal aid, and greater oversight of the actions and the rulings of Chiefs and Local Courts are urgent and critical to address. In the cases below women were supported and helped to access the judicial system by various paralegal and legal national NGOs including the Catholic Church’s Access to Justice Project in Makeni, Lawyers Center for Legal Assistance (LAWCLA) in the district capitals and Freetown, and Tinap for Justice in Magburuka and Bo. These NGOs have assisted many people including women in the district towns and surrounding villages. However they all told Amnesty International that they were completely overstretched with many more cases than these organizations could handle. Staff of community based organizations told Amnesty International that the manipulation and unlawful behaviour experienced by these women is common at the local level due largely because the authority of Chiefs or Local Court officials is rarely challenged. Clearly the women, the most vulnerable in the community, were impacted significantly making their already very difficult situation, much worse.
Women’s access to justice is compromised by so many factors including their perception of what they are entitled to, making access to justice extremely limited. The women interviewed by Amnesty International represent the minority of women who were able, with external assistance, to have access to some judicial remedies or to avoid the imposition of discriminatory fines, to be evicted from their home, or to ensure support for their children. Amnesty International believes there are so many women who suffer in silence.
Legal Obligations to respect, protect, and fulfil the human rights of women
The Government of Sierra Leone has the obligation to respect women's human rights through its direct action, agents and structures of law. In order to adequately protect women’s human rights the government must take all necessary measures to prevent individuals or groups from violating the rights of each individual. The government is also required to fulfill the human rights of women by ensuring opportunities for individuals to obtain what they need or so they can provide for themselves. International law has developed the standard of due diligence as a way to measure whether a government has acted with sufficient effort to live up to its responsibilities to uphold human rights for example to respect, protect and fulfill.
Sierra Leone is a party to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and its Optional Protocol. Under UN leadership, women's organizations are helping the Government of Sierra Leone to prepare its initial report to the CEDAW Committee. Sierra Leone is a party to African Charter on Human and People’s Rights and it has signed, but not ratified the Protocol to the African Charter on the Rights of Women in Africa.
With regard to discriminatory legislation and practices, under Article 2 (f) of CEDAW it states that state parties undertake to “take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs, and practices which constitute discrimination against women.”
Under Article 5 of CEDAW it further states that state parties shall take all appropriate measures “to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women”.
With regard to discrimination in matters relating to marriage and family relations, Article 16 of CEDAW establishes the principle of equality between men and women and in particular for states to ensure “the same rights and responsibilities during marriage and at its dissolution” (see Article 16, paragraph 1, c.)
It also provides for temporary special measures, in accordance with article 4, paragraph 1, of the CEDAW to increase women’s representation in all spheres and levels of public and political life, accompanied by skills training and other support programs to allow women to effectively take advantage of such opportunities.
With regard to the practice of forced marriages, the UN Committee on the Rights of the Child, in its consideration of the initial report of Sierra Leone, stated that it “is very concerned at the practice of arranging marriages - under customary law - for very young girls, in particular against the free will of the child. The Committee notes that such practices violate the provisions and principles of the Convention on the Rights of the Child.” And it recommended that “the State party undertake child rights promotional activities in communities which apply such customary law practices, explaining the rights of children in this regard with a view to ensuring that a minimum age for marriage is established, that it is the same for both boys and girls, and that girls are not forced into marriage.”18
With regard to violence against women, and in particular domestic violence, General Recommendation 19 of CEDAW clearly links discriminatory laws and practices to gender-based violence and makes specific recommendations to states parties to take measures to overcome all forms of gender-based violence, including violence in the family.
The way forward
As the rehabilitation and reform of the administration of justice in Sierra Leone takes place, it is imperative that priority is given to ensuring legal aid and paralegal services, law reforms, administrative and other measures aimed at creating an environment where women are able to enjoy access to justice. Special attention needs to be on reforming statutory law, common law and customary law and practice to ensure that gender-based discrimination which pervades the laws and practices of Sierra Leone is eradicated in all its forms. Laws also need to be developed which play a role in protecting women from domestic violence, harmful traditional practises, and other gender based crimes. The Government of Sierra Leone must take the responsibility for ensuring that this happens. The UN and the international community must facilitate this by assisting Sierra Leonean institutions to protect and promote the rights and equality of women as a crucial step to both the survival of peace in and development of Sierra Leone.
The withdrawal of the United Nations Mission in Sierra Leone (UNAMSIL) will take place by the end of the year. It will be replaced by UNIOSIL whose mandate is largely comprised of human rights and rule of law components. The focus of the mission provides a key opportunity for women’s human rights to be front and center in its work with the Government of Sierra Leone. The Stakeholders Conference on Human Rights provides the forum to begin these discussions on the development of the National Human Rights Action Plan. Tasks to be performed by the u Human Rights and Rule of Law component of UNIOSIL in 2006 must be clearly defined and involve women’s human rights to be fully incorporated into the United Nations country team’s human rights initiatives in Sierra Leone.
Amnesty International’s recommendations are specific and targeted to the content of the National Human Rights Action Plan and the composition and activities of the Human Rights and Rule of Law component of the UNIOSIL due to be in place beginning in January 2006.
Recommendations to the Government of Sierra Leone on the National Human Rights Action Plan
The National Human Rights Action Plan should reflect a comprehensive and serious commitment to women’s human rights. Commitments should be divided into short and longer term steps including:
In the short term
i) Legal aid services and paralegal services should be made available at the district headquarters and Freetown level. Paralegal services should be made available throughout the country to give advice on and mediate civil cases.
ii) Legal Reform for laws concerning marriage, succession, inheritance, and sexual offences which meet international human rights standards are quickly passed and implemented. Domestic violence legislation, currently under consultation, should be fast tracked. Further analysis of discriminatory laws should be carried out as part of the government’s commitment to domesticating CEDAW, and the codification of customary law and ensuring that they meet international standards of fairness and justice.
ii) Institutional reforms must be carried out, such as the development of better oversight mechanisms of the Local Courts through hiring more Customary Law Officers, providing a greater link between the Local Courts and the Magistrate Court, educating people about the possibility of appealing to the Magistrate Courts, make legal aid assistance available for appeals, greater oversight on rulings and fines, and regular monitoring of the Local Court rulings and actions taken by the Chiefs with punitive action taken if necessary.
In the longer term
iii) Training to include gender sensitive and women’s human rights needs to be targeted at staff in the administration of justice institutions including the police, the judiciary, and the prisons, and as well government functionaries at all levels and with traditional leaders including Chiefs, Local Court personnel, and community members.
iv) Developing codes of conduct for the above professionals and community members as well as related guidelines, outlining specifically how they can and should integrate gender concerns into their work. This should be done through a consultative process for regular and transparent review and accountability, in relation to such codes of conduct and guidelines.
vi) Capacity building through further strengthening of community based organizations, local and national organizations through the provision of funding, training in research, advocacy, and networking. Further enhance regional groupings and provide funding for groups to carry out joint advocacy.
vii) Focus on rural areas: Local government, traditional leaders, and members of community should be encouraged to improve women’s position in the community and demonstrate to family and the wider community of supporting and protecting women rather than subordinating them. Development of women’s leadership should also be encouraged.
ix) Development of data collection systems to more systematically analyze the prevalence and effects of gender based discrimination that negatively impacts women’s human rights in Sierra Leone should be set up by the Government of Sierra Leone.
Recommendations for the Human Rights and Rule of Law component of UNIOSIL
To work with relevant ministries within the Government of Sierra Leone to ensure the National Human Rights Action Plan is adopted and implemented effectively by:
a) Ensuring that legal aid and paralegal services are provided and working effectively b) Providing expertise and training on legal and institutional reform;
c) Carrying out and assisting in gender sensitive training to staff and staff of institutions across Sierra Leone;
d) Providing technical expertise in the development of Codes of Conduct working with the relevant governmental agencies;
e) Assisting in the development and implementation of an awareness campaign;
f) Training and building the capacity of local and national organizations with a special focus on rural groups;
g) Facilitating in the consultation, education, training and participation at the local level with relevant local groups and bodies working at the local level;
h) Supporting women to take leadership positions at the local level, and;
i) Facilitating and providing the necessary technical expertise with the government to ensure that appropriate research and systematic data collection is undertaken.
ii) Development of an action plan on confronting gender discrimination in Sierra Leone is developed in the first quarter of 2006. The action plan should be at the forefront of the mission’s work at every level and be regarded as a critical barometer for the mission’s level of success.
iii) A highly experienced gender expert should be recruited whose responsibilities include taking the lead on the development and implementation of the action plan to confront gender discrimination in Sierra Leone, to train other staff of UNIOSIL, other UN agencies, and government ministries in women’s human rights, and to work with relevant ministries to spearhead, monitor and report on implementation of the action plan.
1 This meeting has been co-organized by the Office of the High Commission for Human Rights (OHCHR), UN Mission in Sierra Leone, the UN Country Team and the Government of Sierra Leone
2 UN Doc S/RES/1620 (2005) 31 August 2005 established the creation of a United Nations Integrated Office in Sierra Leone (UNIOSIL) to assist the Government of Sierra Leone in a variety of tasks including, but not limited to: (ii) developing a national action plan for human rights and establishing the national human rights commission; (v) strengthening the rule of law, including by developing the independence and capacity of the justice system and the capacity of the police and corrections system; (viii) developing initiatives for the protection and well-being of youth, women and children.
3 This estimation is found in numerous reports and was commonly quoted to Amnesty International as the percentage of people who live in the rural areas.
4 The Law Reform Commission was established under the Law Reform Act of 1994 and amended in 1996. The Act came into operation in 2003with the appointment of its present Commissioners. The Commission reviews the laws both statutory and others, to reform develop, consolidate, and codify and as well to propose the enactment of new laws as appropriate.
5 Constitution of Sierra Leone 1991, at Section 170
6 Local Courts Act 1963, Act.20 in the laws of Sierra Leone, at Section 2
7 In the past an important role of the Paramount Chiefs was to adjudicate disputes however due to the enactment of the Local Court Act of 1963 Chiefs ceased to preside over Courts and this function was turned over to Local Court Chairman.
8 The percentages vary under both the Christian Marriage Act and the Muslim Marriage Act
9 Married Women’s Maintenance Cap. 1000 of the laws of Sierra Leone Sec. 2
10 Bambrick, Kati, Silent Victims, Young Girls at Risk: An Evaluation of Post-War Rape and the Response to Rape in the Provinces of Sierra Leone. Campaign for Good Governance Publication Freetown, Sierra Leone December 2004 highlights the vast differences as to how cultural practices are handled from one community to another.
11 Local Courts 1965 in the Laws of Sierra Leone Section 75
12 It is customary in Sierra Leone in marriage that a sum of money is paid to the father of his new wife. This is known as dowry in Sierra Leone. (In many other countries this is known as bride price)
13 Bambrick, Kati, Silent Victims, Young Girls at Risk: An Evaluation of Post-War Rape and the Response to Rape in the Provinces of Sierra Leone. A Campaign for Good Governance Publication Freetown, Sierra Leone December 2004
14 Amnesty International interview with Magistrates in Kenema
15 This usually a room or simply a designated area where a person accused would have to stay until they could pay the fine.
16 Witchcraft is widely believed by both educated and uneducated people in Sierra Leone
17 The lawyer from the Access to Justice project that was being funded by the Catholic Church
18 See, Concluding Observations of the Committee on the Rights of the Child: Sierra Leone. 24/02/2000, UN document: CRC/C/15/Add.116.
AI Index: AFR 51/011/2005 Amnesty International 6 December 2005