Women seeking justice: claims-making in lower courts in Benin

Abstract

While the challenges of family law reform and barriers to justice are widely studied, there is a gap in our understanding of the gendered nature of the use of courts in West Africa. Through analysis of judicial decisions in Courts of First Instance (Tribunaux de Première Instance) in Allada and Cotonou, Benin, this article examines how women and men use lower courts in family law cases. This article finds that despite barriers to access to formal institutions, women use these courts in equal numbers as do men, and they use them for divorce, as well as to claim child custody, child-support and alimony. Men mostly use family law courts to determine paternity and to seek divorce. Despite a widespread lack of confidence in courts and tribunals, these Courts of First Instance are a tool for women to challenge social hierarchy and to claim rights for themselves and their children.

The first decision rendered by the Civil Status Chamber of the newly created Court of First Instance (Tribunal de Première Instance, TPI) in Allada, Benin, was the case of a man seeking proof of paternity for a child born to an unwed woman. Since its opening in 2012, the pool of decisions made by the court shows that decisions in paternity cases, child custody and/or visitation rights are for cases that are mostly brought to the tribunal by men, rather than women. In Allada, decisions concerning divorce, alimony and child support are mostly cases that women have brought to the court.

There is a large body of literature on family law reform in the region (Schulz 2003; Soares 2009; Kang 2015; Whitehouse 2022), but very little is written on how men and women use the courts differently in cases concerning family law. In most countries, the new laws provide equal rights for men and women, but there is very little work that shows the decisions of the courts in practice. Through analysis of Constitutional Court decisions in Benin, we know that men are more likely than women to bring human rights cases to the high court and that when a case is brought to the constitutional court women are just as likely as men to succeed (Kang and Wing 2021). This article illustrates how men and women use lower, civil status, courts in Benin differently and, to my knowledge, is the first to systematically examine case records and to show the ways in which the use of the formal courts to resolve civil matters is gendered in Benin. This article is based on field work conducted in Benin in 2018, 2019 and 2022, as well as on original data compiled from court decisions from TPI Allada and TPI Cotonou.

ACCESS TO JUSTICE

In former French colonies, such as Benin, countries adopted the French civil code that remains the foundation of the current formal court system. Legal pluralism, where traditional law and community norms operate alongside formal court systems established by colonial powers, opens up several pathways for individuals to seek justice. Justice may be pursued not only in formal courts, but also various fora, including within families, communities and traditional legal systems. Access to justice (A2J) has a history of being particularly difficult for women and, more generally, for those who rank lower in the social hierarchy. Despite general lack of legal information, financial hurdles and time constraints, this article presents evidence that women use formal courts in Benin to claim their legal rights.

The United Nations' sustainable development goals include goal 16 to ‘Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels’. Across Africa, donors have long focused on improving A2J. In her study on A2J in 36 African countries, Carolyn Logan writes that ‘Africa's legal systems fall well short of providing their citizens with adequate access to justice’ with financial costs and lack of confidence in courts being significant barriers (Logan 2017: 38). Laws protect women's rights and civil society organisations, as well as international donors, provide money and expertise to improve access to formal courts. In Benin, A2J, a programme funded by the Millennium Challenge Corporation (MCC), funded the construction of new courts and legal aid, contingent upon legal reforms in case management. The country was required to show progress in these areas in order for all nine courts to be built. The resistance to fundamental reforms, including implementing a timeline for justices to process cases, as well as the digitisation of the process, resulted in withholding of funds by the MCC and halting further construction of proposed tribunals. Only five courts were built (four trial courts, one appeals court), as opposed to the nine proposed and $10 million was reallocated to the MCC access to markets project (Vapnek et al. 2016). There is a large backlog of cases in Benin's lower court system. Addressing this backlog was also a central component of the MCC A2J campaign. Legal reforms languished in the National Assembly for over a decade before a new law was finally passed in 2016. This law modified Loi N 2008-7 du 28 février 2011, addressed the slow judicial process and also required digitisation of court records (Loi N 2016-16 du 28 Juillet 2016, the Code de procédure civil, commercial, administrative, social et des comptes, known as the ‘Code de procédure’). The digitisation of records is an ideal that is constrained by an overall lack of technical expertise, hardware and software. In November 2022, a judge explained to me that the courthouse where she worked lost all of the digital records when a computer crashed as a result of a virus. This crash was the result of a lack of computer knowledge as well as appropriate software. Nevertheless, digitisation is slowly taking place in courthouses across the country.

Despite the fact that the MCC A2J project includes building court buildings and digitising court records, A2J is not only about access to formal legal institutions (Durojaye et al. 2020). Conflict resolution is often pursued within families or communities where reconciliation is a priority. Nevertheless, should women feel they are not adequately served by customary, religious or family mechanisms for conflict resolution, they can and do choose to go to formal courts to seek the protection of their individual rights.

In Ghana, a woman wanted to prove, in front of witnesses, that she was not responsible for her failed marriage and she sought to clear her name, and that of her family, rather than get her husband in trouble (Salifu 2021: 131). The woman pursued justice in an office of the Department of Social Welfare (DSW), an institution that sought to ‘uphold the rights of women even as they recognize the customary and religious norms articulated by opposing litigants’ (Salifu 2021: 125). The DSW is an example of an institution that is operating in the context of legal pluralism. As Salifu argues ‘the extent to which a human rights institution such as the DSW (Department of Social Welfare) is able to change gender norms depends on the level of freedom individuals have within a social environment to litigate their personal issues’ (Salifu 2021: 130). By bringing her concerns to the DSW, this woman challenged gender norms and expectations. Using the government institutions, such as the DSW or the courts, sets an example for gender expectations regarding marriage and the dissolution of marriage; as well as inheritance and child support.

In the case of Cotonou, Sophia Andreetta has argued, ‘by appealing to the courts, those on the lower rungs of family hierarchies – particularly sisters and widows – manage to transform power relationships to their advantage’ (Andreetta 2020: 6). Women, particularly widows, and younger siblings go to courts to resolve inheritance claims and to secure their rights to property in cases in which family structure and norms would not previously have provided for them. Women use courts to formalise a divorce and to claim child support and alimony, thereby taking legal steps to improve their financial well-being. Men, on the other hand, often use courts to establish or dispute paternity. A father may be required by law to provide financial support to his child, thus, proving paternity has important financial consequences. Despite the existence of multiple legal fora, A2J remains a challenge for individuals based on their position in the social hierarchy, but it is easier for those with legal knowledge or legal advice from family, friends or rights-based associations.

FAMILY LAW AND SOCIAL HIERARCHIES

Democratisation in West Africa in the 1990s sparked a wave of legal reforms to promote more equality for women in family law (broadly speaking laws governing marriage, child custody and inheritance). National Assemblies across the region reformed family laws during periods of democratic consolidation in the 1990s and early 2000s. These laws are often popularly perceived as biased towards women. In Mali, during the long process of family law reform (from 1992 to 2012), the proposed law was often referred to as ‘the women's code’ (Wing 2012). In Niger, when a proposed family code was debated, conservative activists labelled the draft code ‘Satanic’ and claimed that it was being promoted by anti-Islamic secularists (Kang 2015), and the revised code failed to become law.

In Benin, the 2004 Family Code formalised legal equality in matters concerning civil status. Article 26 of Benin's 1991 constitution protects equal rights of men and women. In 2004, Benin's National Assembly voted to adopt a new Family Law to replace the 1931 Family Law and the Coutumier du Dahomey, which was a version of customary law, codified by the French colonial authorities, which governed marriage, divorce and inheritance. The 2004 law equalised the legal minimum age for marriage (18 for men and women); gave men and women equal rights in divorce, child custody and inheritance. The new law forbade the practice of levirate (widow inheritance), repudiation and polygamy. It also allowed women to add their maiden name to their husband's name, a practice that was not previously permitted.

Once the laws are in place, we can examine how they are used in practice. Emily Burrill shows that, historically, the tribunal de premier degré in Sikasso (Afrique Occidentale Française) was used in moments of marital rupture. The tribunal registry shows the frequency with which marriage-related cases were brought before the court (Burrill 2015: 177). From the 1940s to 1950s, men and women used the civil tribunals to ‘form conjugal unions that were recognized by the state, if not by their families’ (Burrill 2015: 177) and young men and women used civil courts as a way to break away from family elders (Burrill 2015: 182). Burrill's evidence shows that the use of civil law to challenge social hierarchies, discussed below, has a long social history.

The new legal environment created laws that specifically protected women's rights. Today, women use the law to defend their rights, to clear their name and to reinforce their legal access to financial support (alimony and child support). While the numbers of decisions rendered by the lower courts in Benin are small and represent a tiny segment of society, the records of decisions show women using courts as a means to access justice in Cotonou and Allada.

LEGAL SUPPORT

Legal support for women is provided by an array of civil society organisations. Blanche Sonon, a former vice-coordinator of WILDAF, interviewed on 14 August 2018, described how members of civil society organisations accompany women to the courts to provide moral support. Professional associations, such as the Association of Women Lawyers of Benin and the Association of Women Jurists of Benin, support women who have entered the legal profession as well as women seeking to access justice in the formal courts. The Association of Women Lawyers in Benin (AFAB) offers free legal consultations weekly. These consultations take place in Cotonou and Abomey-Calavi. I observed these consultations on 26 October and 2 November 2022 in Cotonou. The women seeking legal advice were mostly alone, although some were accompanied by men supporting them and encouraging them to tell their stories and get legal support from the women lawyers. In one instance an elderly widow was concerned about her inheritance. Her husband had recently passed and her eldest son, one of five children, was claiming his father's entire estate. The lawyer from AFAB guided this woman through the legal paperwork so that the estate would be divided equally among the children and the widow. In another case, a woman was seeking financial support from her estranged husband who provided no monetary support for the healthcare and schooling of their children, support that he was obliged by law to provide. I spoke with a widow who said she had come to AFAB out of desperation. The inheritance process was slow and, in the meantime, she had no money and needed to pay the fees (400,000 fcfa) for her eighteen-year-old daughter's secondary school. The lawyers agreed to immediately process a form to allow the family to sell the vehicle that belonged to all of the inheritors in the family. Her share of the sale would give her some money to pay school fees. The lawyers were able to intervene to get a process going that would have a desirable outcome for the woman. The cases heard by AFAB that I observed were all cases which rested on women's lack of financial autonomy and their relatively low position within the family hierarchy.

As Alexandrine Saizonnou, the former President of Women Lawyers Association of Benin, explained during an interview in August 2018, not only is justice slow but the biggest problem with the Family Code is that women are unaware of their legal rights. The women coming to the legal consultations of AFAB are informed of their rights and they are challenging social norms by demanding their legal rights.

LEVELS OF CONFIDENCE IN INSTITUTIONS

Legal pluralism provides individuals the opportunity to seek justice in whichever legal forum they believe will best suit their needs. This choice is often made based on the level of confidence that individuals have in these institutions. Afrobarometer data from Benin reveal the relatively low level of trust that individuals have in formal courts and tribunals, with urban inhabitants having the least confidence in these institutions (see Figure 1).

Figure 1. Confidence in courts and tribunals (percentage).

Source: Afrobarometer and Innovante recherche en economie et gouvernance (IREG) 2022.

Figures 2 and 3 illustrate that, overall, people surveyed in Benin in 2022 have greater confidence in traditional and religious leaders than they do in formal courts. Rural inhabitants have the most confidence in all three categories, and women have more confidence than do men in religious leaders.

Figure 2. Confidence in religious leaders (percentage).

Source: Afrobarometer and Innovante recherche en economie et gouvernance (IREG) 2022.

Figure 3. Confidence in traditional leaders (percentage).

Source: Afrobarometer and Innovante recherche en economie et gouvernance (IREG) 2022.

Perceptions of corruption also play a role in how much confidence people have in institutions. According to Afrobarometer, since 2014 popular perceptions of government corruption have improved in Benin. Despite this, in 2021, ‘About half of the citizens say that “most” or “all” customs agents (52%), deputies in the National Assembly (50%), judges and magistrates (48%), and police (46%) are corrupt. Religious leaders (21%) and traditional authorities (27%) are perceived to be less corrupt’ (Samson 2021). When analysing the decisions at the TPI, the context of legal pluralism and confidence in various institutions is important because individuals seek justice in a variety of venues and the tribunals are only one of numerous choices.

METHODOLOGY

This article examines the civil status decisions rendered by TPI Allada and the four Chambers for Matrimonial and Child Affairs of TPI Cotonou. It does not include cases involving gender-based violence that are heard in the criminal courts. I also use data from the Ministry of Justice (2008–2016), as well as my own original dataset gathered from TPI Allada and Cotonou. I selected Benin because of its history of democratic consolidation and its adoption of a new family law, both of which signify at least a cursory commitment to human rights. In June 2022, the rule of law and human rights index was higher than other countries in West Africa (Center for Excellence on Democracy, Human Rights and Governance 2022). As a signatory to the Convention for the Elimination of Discrimination Against Women and the Maputo protocol (protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa) Benin has signalled its interest in protecting women's rights. The current President, Patrice Talon, has led several initiatives that place women's empowerment at the center of his Presidency (Djogbénou 2022; Promotion, protection et leadership des femmes au Bénin 2022). He has created a National Institute for Women and moved the jurisdiction of cases involving sexual violence into a special chamber of the Court of Punishment of Economic Crimes and Terrorism. This court, established in 2018, claims to address corruption, drug trafficking and terrorism cases, but has expanded to include gender-based violence. It has also been used to target opposition party politicians and journalists (Freedom House 2022).

I selected the TPI in Cotonou because it is the largest TPI in the country. It is located in the predominantly urban Department of Littoral. I focused on all the decisions of the four chambers on Matrimonial and Child Affairs in just one year (2019) because of the large number of decisions in the Cotonou courts. For comparison, I selected TPI Allada because it is one of the five recently built courts and began hearing cases in 2012. It is in the nearby Department of Atlantique. Allada is also in the south and while it is close to the larger cities, it also serves a rural population. Therefore, TPI Allada is reaching both urban and rural zones and because it was established recently, we can analyse the entire record of decisions since it first opened.

There is a large backlog of cases in both courts and there is no effective way to gather data on all cases that are introduced into the civil court chambers. Cases may be brought to a court but a decision may never be rendered. This could be for a variety of reasons, including, but not limited to, social and monetary cost, time commitment and complicated court procedures that are not fully understood by the claimant. As a result, we do not know how many people attempt to resolve issues through the formal court system, nor do we know how many people completely gave up after having introduced a case into the courts. On 26 October 2022, a man waiting for a consultation with an AFAB lawyer spoke with me and said, without exaggeration, that the courts are so slow that in some cases widows die before their inheritance cases are worked out by the courts. A lawyer from AFAB told me that it was not unusual for an inheritance case to take 15 years to reach a settlement. Some cases reappear multiple times in court records. In some instances, this is because additional information has been requested by the judge, or additional fees have been added (fees for surveyors or other experts, for instance), or because one party fails to show up at the scheduled hearing. Despite these constraints, by analysing the court register of decisions, we can learn the sorts of cases decided by the court and whether these cases were brought to the court by men or women. Anecdotal evidence shows that in some cases men assist women with the legal process, although women appear as the sole claimants in the court. It is also clear that some cases are brought by women with the assistance of associations, such as AFAB. Unfortunately, it is not possible to distinguish those decisions brought with the assistance of an association from those brought by women alone. Finally, the decision date includes day, month and year of the decision, but not what happens after the court renders the decision. This is important because we cannot know if and how people comply with the court decision.

ANALYSIS OF DECISIONS

As previously mentioned, all of the courts in Benin face an enormous backlog of cases. Figure 4 shows the backlog of personal status cases. On average, across all courts (represented in grey) the percentage of decisions made relative to cases in the docket is approximately 32%.

Figure 4. Rate of personal status TPI cases closed.

Source: Benin Ministry of Justice 2022.

The court in Allada was established in 2012 and national data only appear above from 2013 onwards. Data for Allada in 2015 do not appear on the Ministry of Justice website. It is clear that TPI Cotonou has struggled the most with a heavy caseload. The lowest percentage of decisions relative to cases is in 2010 at at 16.72 % in TPI Cotonou, where the civil status chambers have maintained an average of a mere quarter of the caseload result in decisions. This is a deterrent to investing time and money in the formal court process. The four civil chambers of TPI Cotonou have the busiest caseload of all the TPI (Ministry of Justice 2022). The 2016 code de procédure required judges to process cases in a timely fashion. It also prevented judges from continually requesting litigants to return to the court with additional information, thereby perpetually delaying a case. This is a step in the right direction; however, the available Ministry of Justice statistics do not yet include decisions after this law was implemented so its effect is not yet understood.

WHO USES THE COURTS AND WHY?

If there are multiple venues available to pursue justice and people have little confidence in courts and tribunals, relative to traditional and religious authorities, then who uses the formal courts and why? If judges and magistrates are widely considered to be corrupt, and traditional leaders and religious authorities are perceived as less corrupt, why would an individual seek to resolve a civil conflict in a formal court? Sophia Andreetta aptly asked ‘Why go to a Tribunal if the judge's decision is not executed?’ (Andreetta 2016). For her the answer lies in the social influence of a court decision. It carries weight and social authority that helps legitimise or challenge family authority (Andreetta 2020). Similarly, a civil marriage requires divorce in order to be officially dissolved. The 2004 family law created guidelines for divorce, child custody and alimony but only a court can establish the amount of alimony and child support to be paid. Therefore, without a court ruling, a woman has no formal legal recourse. Even with a court ruling, her ex-spouse may seek to ignore required alimony payments, but she will have legal backing to make claims against him.

In TPI Allada, I analysed all the decisions rendered since it was first established in 2012. Given the backlog of cases, we know that the vast majority of those who bring cases will wait a long time for decisions or may drop out of the system before a decision is rendered by the court. Decisions rendered in cases brought by women fall predominantly under divorce, alimony and child support, adoption and inheritance. This is an expected finding since these are areas where the claimant may rely on the authority of the court to protect their rights. Traditional practices allowed for levirate (widow-inheritance) and repudiation, both of which are now illegal in Benin. The vast majority of marriages in Benin will be religious or traditional marriages, rather than civil marriages. Only civil marriages are recognised by the state and alimony will only be established in divorces resulting from the dissolution of civil marriages.

Figure 5 shows the breakdown of cases in the Civil Status Chamber of the TPI Allada and compares the gender breakdown of cases being brought to the court. Figure 5 shows decisions involving cases brought by women include adoption, alimony, divorce and inheritance. Decisions of cases brought by men include predominantly, guardianship and child custody and paternity verification. Figure 6 shows all of the decisions made, broken into subject category, in the four Civil Status chambers of the TPI in 2019.

Figure 5. Allada civil court cases breakdown 2012–2020.

Source: Author's dataset.

Figure 6. TPI Cotonou, all four civil status chambers, 2019.

Source: Author's dataset.

Of particular note is the roughly equal number of decisions in the TPI in Cotonou for cases brought by men (221) and cases brought by women (226) in 2019. Figure 7 shows all decisions in TPI Cotonou during 2019. It is interesting to note that, unlike in Allada, these decisions include more cases brought by men than women concerning divorce.

Figure 7. TPI Cotonou civil status chambers, all decisions 2019.

Source: Author's dataset.

According to a female judge in Benin that I interviewed in 2022, more men than women bring divorce to the courts in Cotonou because ‘Cotonou women are liberated’. She argued that women in Cotonou are more autonomous and empowered to live their lives as they choose while married. Men who are unhappy in this situation seek a divorce and a ‘more docile’ wife (Interview Cotonou 2 November 2022). This antidote offers an interesting perspective on what might be behind the variation between Cotonou and Allada with respect to gender and divorce decisions. Another possibility is that because polygamy is illegal, men in Cotonou are more likely to divorce and remarry, than are men in Allada. The men in Cotonou would have been most likely to have the financial means to take on a second wife, but given that they are no longer permitted to do so, divorce is the option that they are likely to pursue. Studies have shown that in the United States and the United Kingdom, women will seek divorce more frequently than will men and that when women have greater economic autonomy, they are more likely to seek divorce (Bishop 2022). It is unlikely that women in Allada are more economically independent than women in Cotonou.

CONCLUSION

Women and men pursue justice in lower courts in Benin, but they use these courts in different and gendered ways. Once a divorce has been declared by law, an ex-spouse may be legally required to support the family. A divorce ruling that includes material support for an ex-wife and children may not be viewed as a direct challenge to familial authority but rather as a reasonable legal expectation. Taking the first steps to get a divorce is difficult, but once divorced, a woman has the law to support her demands for financial support. Inheritance, on the other hand, may directly challenge tradition and family hierarchy. In cases where the eldest male heir is challenged by younger siblings and the widow, there may be a long battle to overturn traditional norms. In Benin, women will file cases in the courts, not because they believe the ruling will be followed to the law, but because having the power of the state behind a decision carries social weight (Andreetta 2020). Despite the burdens of accessing justice, women's use of the TPI in Cotonou and Allada, as well as seeking the support of AFAB, show how some women are using these institutions to seek justice and to challenge social norms and expectations. Men who are seeking proof of paternity, are seeking legal documents that will in one way or another bind them to a child (or children) or release them from a legal, and likely financial obligation to the child(ren). In all the cases in Cotonou in 2019 in which the court ruled that financial payment to the other party was required, only one case obligated a woman to pay support to a man. In every other instance, child support or alimony was to be given to the woman.

Evidence provided in the article shows that women use the formal courts at rates similar to men, but that they use the courts for different purposes than do men. While the percentages remain small, women use courts to challenge the social hierarchy. This was evident in 1940s and 1950s, and remains true today. This does not mean that women have easy A2J. It is clear that this is only a small segment of society, and it is likely that the judicial process was long and burdensome. However, when women are supported in their efforts to challenge the social hierarchy and to demand their legal rights, their A2J is improved.