Customising equality in post-conflict constitutions

Abstract

Introduction A significant number of post-conflict constitutions entrench the right to equality between men and women as a constitutional principle. Indeed, in regard to those constitutions drafted since the end of the Cold War, it is possible that a higher proportion of such constitutions entrench this right due to pressure from the international community as well as the influence of international and regional norms generally. Since 2004, for example, the UN has aimed to ensure, in the context of its rule-of-law assistance to post-conflict states, that ‘all programmes and policies supporting constitutional, judicial and legislative reform promote gender equality’. Elsewhere, in a 2009 Guidance Note on Constitutional Assistance the UN recommends that ‘the principle of equality between men and women should be embedded in constitutions’. The UN’s Guidance Note on Constitutional Assistance understandably focuses its assistance on broad principles that can enable states to draft modern constitutions that articulate international standards. Indeed, post-conflict states are generally very keen to be seen by the international community to be entrenching such international standards in the form of a modern constitution. Given the UN’s emphasis on international standards, it is unsurprising that the UN’s Guidance Note fails to recommend that its experts should be attune to the dynamics of legal pluralism and its impact on equality when they are providing constitutional assistance in certain regions where legal pluralism is strong, such as Africa and the Asia-Pacific. While the inclusion of a right to equality between men and women as a constitutional principle can be seen as broadly beneficial for women, this principle alone does not necessarily assist in addressing some of the ‘big questions’ that specifically relate to women - such as protection from domestic violence as well as equal property and inheritance rights under customary law or other applicable law. This chapter argues that one important constitutional avenue in this regard for post-conflict states with strong legal pluralism is the constitutional articulation of the relationship between state law and systems of customary law given the prevalence of customary law and the impact it can have on women’s lives. For some time, customary systems of justice have been sidelined in constitutional texts.