“The Problem is the Law and Women's Rights…” A Study of Marriage Practices in the Eastern Democratic Republic of Congo

Abstract

In this article, I explore gender justice in relation to the sociolegal status of marriage practices and how women address marital disputes. My research is based on 9 months of immersive fieldwork in Uvira, Democratic Republic of Congo (DRC). The eastern DRC has experienced extensive interventions to prosecute sexual violence and advance women's rights. However, these interventions have tended to miss the complexity of gender dynamics and how rights and justice are understood and sought by women in their everyday lives. I argue that gender justice is a process rather than an end goal and that legal pluralism, and its hybrid manifestations, is a space where that process can unfold. Through prioritizing women's experiences of marriage and separation, I contribute to the scholarship that challenges simple narratives of gendered harms in “othered” contexts and highlight the flexible space of legal pluralism to develop dialogue, ideas, and practices of contextualized gender justice.

Things have changed…The problem is the law and women's rights…The more women are informed and claim their rights the more divorces there are, which is bad. Women are supposed to submit to their husbands¹…This is God's will. At home the man can do whatever he wants; he can even hit her to bring her back in line. Now, if she knows that she can go to la justice (the state legal system), women will try to get divorced… It is the custom, though, for the chef (chief) to still listen to her if she comes to him after being hit. He listens to both [parties] to see who is at fault. If the woman [is at fault], she must buy a chicken and make it for her husband. If the man [is at fault], he needs to buy her a new pagne (commonly worn clothing/wrap) and outfit. (Group interview, 13 April 2015)

This quote is derived from a group interview with local chefs² and wise elders in Uvira, South Kivu, Democratic Republic of Congo (DRC). Their comments were an interesting development on a question I posed about social changes in the years following armed conflict in the region. The chefs recognized the increased promulgation and societal interest in the law, especially around women's rights, during the transition. From this section of the interview, it sounds as if these chefs are supportive of maintaining women's subordination in the home, but it can also be interpreted as the desire to prevent divorces, reconcile marriage disputes, and keep the family unit together. As the group framed it, women's education about their legal rights will lead them to go to la justice and get divorced on a regular basis, which is generally understood as problematic for the family and society. This quote speaks to some of the ongoing tensions in local sense-making around legal reforms and local marriage practices and expectations. I examine these tensions more deeply to consider the possibilities of gender justice in Uvira's complex sociolegal terrain.

In this paper, I explore the possibilities of gender justice for women, henceforth “gender justice,” by considering the gendered practices around marriage that appear to disadvantage women vis-à-vis men. I argue that “gender justice” is not a static, predefined (legal) end goal, but a process defined by ongoing, context-dependent social dialogue, contestation, and practice, which can be facilitated in justice spaces. I illustrate how context-specific understandings of gender justice are developed through marriage practices, as well as through how people address marriage disputes in the context of emergent hybrid legality. Emergent hybrid legality specifies the dynamics of legal pluralism; it refers to a diverse terrain of separate and merged justice mechanisms, practices, and institutions, reflecting both localized beliefs and practices and globalized liberal legal standards (Dunn, 2022). In Uvira, where I conducted 9 months of immersive fieldwork, local organizations have contributed to the promulgation of legal reforms aligned with Western/internationalized, liberal legal trends and associated understandings of women's rights. Through awareness-raising activities, which I have written about elsewhere (Dunn, 2022), these have become a part of popular legal consciousness—how people think about, make sense of, and engage with the law (e.g., Chua and Engel, 2019; Ewick and Silbey, 1998; Merry, 1990)––and thus permeate the construction of gender justice, but do not supplant local beliefs, practices, and worldviews. Rather, the complex realities of emergent hybrid legality create spaces for ongoing negotiations and contestations about gender justice. This phenomenon is not perfect and is not to be romanticized, as it is still subject to intersecting power dynamics, but it points to the possibilities for context-specific conceptualizations of gender justice within the fluid spaces of culture, legal pluralism, and legal consciousness.

The eastern Congo is an important place to explore the relationship between gender justice and emergent hybrid legality due to recent women's rights and law-related developments. Activists and legal actors have prioritized prosecuting wartime rape to advance women's rights during the precarious transition from war to peace, and much has been written on this from different angles (e.g., Aroussi, 2018; Houge and Lohne, 2017; Lake, 2018; Mertens and Pardy, 2017; Sahin, 2021). In this article, I shift scholarly focus to ask how the context of emergent hybrid legality shapes the possibilities of gender justice for women in their everyday lives; to do this, I focus on one of the most commonly experienced gendered social phenomena: marriage. My work builds on recent scholarship in other contexts that provides nuanced considerations of women's experiences of marriage (e.g., Mphaphuli and Smuts, 2021) and gender justice (Jasor, 2021; Schrago, 2022; Wielenga, 2022). Further, the study of everyday gendered experiences and disputes is important in conflict-affected areas, as women suffer an increase in “ordinary” violence during conflict that is often reasserted during transition (Ni Aoláin, 2009; see also Manjoo and McRaith, 2011) and ignored by international actors who tend to prioritize wartime rape (Buss, 2009; Henry, 2014; Kirby, 2015; Ni Aoláin, 2009). Although this trend in scholarship is changing, Berry and Lake (2021) have recently argued that much work still needs to be done to understand the dynamics of gender and transition. Marriage is a crucial practice to consider as it is a fundamental part of daily social life.

In this paper, I illustrate how people's understandings of marriage, and attempts to address marital issues and disputes, reflect ongoing and shifting social dialogue and contestation around gendered norms, and, implicitly, gender justice. I first consider the limits of liberal legalism for conceptualizing and achieving gender justice through the lens of women's rights. Next, in contrast to the liberal legal approach, I outline my conceptualization of gender justice and how it fits with emergent hybrid legality. I provide a brief overview of my methodology, then turn to consider women's experiences and narratives from my fieldwork. This exploration will first be rooted in an analysis of different marriage practices to grapple with some of the foundational logics of the gendered dimensions of marriage, and their sociolegal standing. Finally, I explore how these dimensions, combined with how people seek justice for harms or disputes, reflect the possibilities of gender justice within emergent hybrid legality.

Defining Gender Justice and Assessing the Limits of Liberal Legalism

State law and legal reforms in transitioning contexts tend to focus on the concept of women's rights, especially as legal rights, to try to address gender inequality and violence against women. Yet, there are limits to this approach to gender justice, if it can be conceived as gender justice at all. Here, I outline how attempts to advance women's rights rooted in liberal legal understandings of the law and the legal subject may be limiting, especially in transitioning contexts like the eastern DRC.

Liberal legalism can be conceptualized in different ways, highlighting various elements of the ideology. Following Hunter (2016), I use liberal legalism to refer to specific understandings of the individual and the law based in classical liberalism, combined with the norms and institutions associated with the legal systems of, typically Western, liberal states. First, this approach includes the assumption that the individual is the fundamental unit of society, existing prior to social organization, and that the individual is rational (Enlightenment, scientific rationality) and self-interested (Scales, 2006). This understanding privileges individual autonomy and responsibility in the state legal setting (Fletcher, 2004), separating parties to adjudication into discrete categories of victims and perpetrators (Houge and Lohne, 2017). In the DRC, this is reflected in the international focus, and domestic emphasis, on prosecuting wartime rape, and sexual violence more broadly. At the same time, there is a body of research that questions this conceptualization of the individual and society. For example, transitional justice scholars have pointed to a role for the family, community, and broader cosmology in understanding guilt and victimhood (Baines, 2010). Additionally, Wielenga (2022) emphasizes family, community, and relationality as important factors in “justice on the ground” in Southern Africa, specifically regarding gender justice. Thus, the foundational assumption of the individual as the basic unit of society proves problematic in certain contexts, as does any assumption of rationality that cannot encompass local cosmologies.

Second, “Liberal legalism posits law as an essentially benign, neutral and autonomous institution” (Hunter, 2016: 19). The liberal legal subject is essentially stripped of all differentiated and embodied characteristics and exists simply as a decontextualized, rational, autonomous entity (Grear, 2011). Thus, formal equality—equality before the law—is often viewed as the way to promote substantive equality because it is perceived as neutral. This idea has been both critiqued and upheld (Phillips, 2001). Critiques range from Charlesworth et al.'s (1991) argument that state legal systems establish priorities that benefit male elites, to Berry and Lake's (2021) more tempered point that legal reforms in transitioning context only bring incremental change to “some women's experiences of equality and justice” (emphasis added, 465). These critiques raise questions about the benign, neutral, and autonomous functioning of legal systems. While state law can in some cases promote formal equality, the impact in terms of substantive gender justice is dependent on several factors.

Third, liberal legalism has also been critiqued for being neo-colonial and lacking local cultural awareness, this includes specifically gendered dynamics. There are multiple streams of neo-colonial gendered injustice. Here, I focus on the reductive and essentializing tendencies of Western engagements, based in the logic of “othering” (Said, 1979). The gendered dynamics of this process may lead Western actors and international institutions to group all “Third World” women as a collective “other” (Mohanty, 1994) or to categorize men and women as “savages” and “victims”, respectively, in need of “saving” from Western outsiders (Mutua, 2001), thus assuming the inherent oppression and vulnerability of African women (Hodgson, 2011). For example, in Congo, from the colonial era through to more recent interventions, international actors have framed women as victims of culture––in part because of the ongoing practice of polygamy––and Congolese men as in need of civilizing (Mertens and Myrttinen, 2019). Emergent hybrid legality allows us to explore cultural and neo-colonial tensions in socio-legal issues, like marriage, without imposing the lens of Western values, which, as Van Bavel (2023) notes, can miss African agency and oppotunities for transnational partnerships.

Any conceptualization of gender justice thus needs to challenge neo-colonial tendencies and recognize that populations cannot be essentialized to simplistic, gendered categories. Bunting et al. (2021) argue that “to see women's victimization as all-encompassing is not respectful of the ways in which women exercised their agency in captivity and may contribute to further disempowerment and community stigma” (629). Bunting et al. (2021) are referring to situations of forced marriage in conflict, but their point certainly extends beyond. It would also mean challenging the structures that solidify and reproduce these tendencies. Thus, gender justice would “reject an agenda that reinforces a heteropatriarchal gender order in which efforts to eradicate gender inequality deepen other forms of oppression” (Berry and Lake, 2021: 474). I conceptualize those other forms of oppression to include racialized and gendered neo-colonial constructions of essentialized identities.

Thus, in situations where gendered inequality and harms against women, broadly conceived, form a part of the fabric of everyday life, I understand gender justice for women to be about disrupting problematic structures, institutions, and practices in order to challenge women's subordination to men, as well as internationalized reductive tropes, portrayals, and assumptions about women's experiences. This may include conventional elements of gender justice, such as representation/participation, addressing harms, and dismantling social, political, and economic structures that maintain gender inequality (O'Rourke, 2015). However, it would also include unsettling the legacies of the gendered harms of colonialism and neocolonialism by, for example, rejecting the imposition of Western values and exploring the complex intersection of women's agency and victimization. Thus, I argue that emergent hybrid legality holds the possibility of a space, though not the only space, for the process of gender justice. In the next section, I consider the legal and gender dynamics in the eastern DRC before turning to my fieldwork.

Context: Legal Pluralism and an Emphasis on Sexual Violence

In DRC, legal reforms in the 2000s and 2010s emphasized women's rights and prosecuting sexual and gender-based violence (SGBV) against women. This was in part a response to international activism around ending and punishing wartime rape. As just one example of many, in 2010 Margot Wallström, the United Nations Special Representative of the Secretary-General on Sexual Violence in Conflict, called the DRC the “rape capital of the world” (emphasis added, BBC News, 2011). The international sensationalization of wartime rape made the eastern Congo the site of research, activism, media attention, and humanitarian action around the issue of women and armed conflict (Baaz and Stern, 2010; Freedman, 2014; Kirby, 2015; Lake et al., 2016). However, as Hilhorst and Douma (2018) have argued, all this “hype” can “produce [a] reductionist, singularly focused storyline for outlining a problem and offering a certain solution” (S81). International actors have constructed the problem as wartime sexual violence (and sexual violence more broadly) and the response as ending impunity (Houge and Lohne, 2017).

International resources directed at supporting female victims, such as medical and psychosocial support, legal aid, and developing the legal system's capacity, were often channeled through local NGOs, and international NGOs with local offices. These have tended to focus narrowly on some women's experiences of some harms, notably centralizing female survivors/victims of sexual violence as the target population. Internationally funded justice projects thus prioritized building state legal institutions and prosecuting SGBV (Autesserre, 2012; Freedman, 2014) and improving the legal system's ability to function in line with international standards (Lake, 2014). The emphasis on prosecuting some forms of SGBV, often with a focus on sexual violence, has meant negligible engagement with the complexity of legal pluralism or women's diverse “everyday” experiences of disputes and harms. The legal reforms and interventions reflect a top-down effort to promote women's rights, aligned with internationalized liberal legal standards. They may include elements of gender justice, such as women's participation and representation in legal processes and addressing some harms, which O'Rourke (2015) acknowledges are important, but insufficient, elements of feminist priorities in transitional contexts. Yet, these reforms and interventions are limited and can reflect paternalistic and essentializing neo-colonial tendencies of defining women by their victimhood––specifically of sexual violence, but also of culture––and presuming to know the best response––prosecution in state courts––as outlined above (e.g., Hilhorst and Douma, 2018; Houge and Lohne, 2017).

The public promulgation of legal reforms, including those around marriage, has primarily been undertaken by local media and organizations that often have a member lawyer, may have some basic legal or rights training, and are committed to awareness-raising about the law. They are typically funded by foreign or international entities, and that funding is relatively precarious. Despite efforts to raise awareness about the advantages of civil marriages, regulation of marriage and settling of marriage related disputes and harms are complex processes, with some laws gaining more social traction through their use in semiformal spheres. Here, I consider some of the tensions around civil versus traditional marriages and illustrate how emergent hybrid legality creates spaces of negotiation and contestation that are relevant and accessible to actors, thus illustrating some of the possibilities of gender justice.

Even as legal reforms have taken on certain liberal characteristics, the broader terrain of legal pluralism includes multiple interacting spaces of justice. In terms of state courts, Uvira city (in the territory of Uvira) is the seat of the three official state courts for the province of South Kivu (excluding the provincial capital Bukavu, which is independently administered): the Tribunal de Paix (Peace Court-Tripaix) hears cases punishable by less than 5 years prison time and/or a fine; the Tribunal de Grande Instance (High Court) adjudicates crimes warranting over 5 years prison time and/or a fine; and the Tribunal Militaire (Military Court) hears cases involving military, police, and armed groups. The Tripaix was created by l’Ordonnance-loi n° 68-248, 10 September 1968, to replace police courts and traditional courts. The Tripaix in Uvira city has territorial jurisdiction for all of Uvira territory. Each territory should have at least one Tripaix. According to local interlocutors working in the legal field, it has only been functioning in Uvira since around 2011.

At the same time, Uvira is rich in various other justice systems and practices. For everyday harms and disputes, people often attempt arrangements à l'amiable—amicable settlements—mediated by chefs, village elders, religious leaders, family members, or NGOs. Amicable settlements can be more or less formal depending on who is mediating. The least formal would be with family members and more formal with chefs and NGOs. Some use the term arrangements à l'amiable to refer only to arrangements made within or between families, maybe with the help of a local elder, others use it to refer to all mediation and dispute resolution not associated with state courts. For many, turning to the legal system, any of the state courts described above, is a last resort.

NGO-run mediation that I observed draws upon norms and practices of customary justice, state law, local worldviews, and international norms, reflecting its emergent and hybrid nature. These projects are typically, although precariously, supported by international donors, and mediators have often, but not always, completed some form of human rights or mediation training developed by international organizations, including the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO), or with other local organizations who have done trainings with international organizations. Funders, usually international organizations, have some influence in shaping the goals of the organization, but they rarely have constant, in-person oversight, leaving space for local actors’ agency and creativity. Their relationship with the state legal system and local authorities can be complementary, overlapping, and/or contentious.

The legal context in Uvira thus reflects emergent hybrid legality. As I detail elsewhere (Dunn, 2022), emergent hybrid legality unites de Sousa Santos’ (1987) concept of interlegality with Tsing's (2005) concept of friction and specifies the contours and context of legal pluralism. I draw on the concept of friction (Tsing, 2005) to highlight the encounter between liberal legalism and the local justice context, which is already shaped by a palimpsest (Santos, 2006) of legal encounters. Friction reflects the idea that “Emergent cultural forms…are persistent but unpredictable effects of global encounters across difference” (Tsing, 2005: 3, emphasis added). This is important in spaces of continued legal encounters as it highlights that outcomes, in terms of legality, cannot be predicted in advance, but are shaped by context and shifts in popular legal consciousness, or how people engage with legal pluralism. This disrupts the idea that legal reforms and interventions in state law and even local NGO work will lead to the outcomes anticipated by interveners. I fuse this point with the idea of interlegality, which suggests that legal pluralism “is a highly dynamic process because the different legal spaces are nonsynchronic and thus result in uneven and unstable mixings of legal codes (codes in a semiotic sense)” (de Sousa Santos, 1987: 298). Interlegality thus highlights the hybrid nature of legal pluralism, as others have done (e.g., Santos, 2006; see also Chanock, 1985; Merry, 1988; Sieder, 2013), while hinting at the emergent nature that “friction” explicitly outlines, specifically in thinking about what processes and cultural forms emerge from international–local encounters.

The complex realities of legal pluralism certainly raise questions for gender justice. How do different justice options advance gender justice or entrench inequalities? Some feminist scholarship and activism has long critiqued “traditional” or “customary” justice as cultural spaces where patriarchal norms and practices are entrenched (see Hodgson [2011] for an overview of these debates). With an awareness of these gendered power dynamics, I explore the possibilities of gender justice within the context of emergent hybrid legality by focusing on marriage in Uvira, DRC. First, I provide a brief overview of my methodology.

Methodology and Ethics

This paper is based on 9 months of immersive fieldwork (four trips) in Uvira and is part of a broader research project that examines popular justice beliefs and practices for everyday harms and disputes. Immersive fieldwork refers to fieldwork that is engaged in the daily lives of those in the community. This was especially important in eastern DRC where international actors tend to segregate themselves from the local population because of security protocols (Autesserre, 2014). For 6 months of my research, I lived with a local family to facilitate the type of immersion I was looking for; I thus developed a strong bond with that family and have continued to maintain this relationship.

My fieldwork and analysis are guided by a feminist research ethic that pays particular attention to gendered power dynamics, valuing women's experiences and voices, recognizing women's agency, as well as the tensions that accompany this approach (e.g., Ackerly and True, 2019; Baaz and Stern, 2016). As such, I engage with the nuances of women's lived experiences and highlight contextualized understandings of harm and justice to challenge some of the tendencies of reductive and essentializing accounts of women's lives in the eastern Congo. My methodology, ethics, and analysis are all entwined with that goal. Although I was guided by feminist methodology, my goal was not to focus solely on women but to explore everyday harms, disputes, and justice practices more broadly. At the same time, my research was shaped by the local dynamics that “pushed” me toward women and their experiences. At times, I had to challenge the idea held by local actors that I was interested in researching sexual violence, as many within the local civil society had come to expect this agenda of a white foreigner, especially a woman. I have written about this dynamic and the ethical and practical difficulties of doing research in the context of eastern Congo more extensively elsewhere (see Dunn, 2020). Thus, I limit my discussion here to my methods.

My research methods included participant observation of the justice practices outlined above, as well as interviews with a variety of actors. I conducted 29 semiformal interviews with baraza participants and numerous informal interviews with mediators in three different baraza locations. Baraza is a traditionally informed, justice mechanism conceptualized and run by an NGO in Uvira (see Dunn, 2017). Like many of the other local NGOs I interviewed, the organization that runs baraza has at times received international funding but tends to experience a shortage of funds and funding gaps. I conducted nine semiformal individual interviews with members of the legal profession, including judges and lawyers, 10 interviews with the leaders of local NGOs, and 46 individual interviews with members of the local population. Most interviews were conducted in Kiswahili and other local languages with the help of an interpreter. I also conducted a few interviews in French. Interviews were transcribed to French by a research assistant. I have tried to translate across multiple languages as directly as possible, with consideration of the spirit of the quotes. However, this process does require interpretive decision-making.

I also held ten group interviews in Kiliba and Makobola. The decision to do group interviews was a practical one based on my first experience of fieldwork in 2011. During that period of research, I conducted individual interviews. However, as a white researcher engaging directly with the local population and not part of any international organization, my presence garnered lots of curiosity from neighbors and others in the community. I found it extremely difficult to privately conduct interviews in people's homes or yards, yet I did not yet have the contacts needed to establish appropriate private interview location. This created both ethical and methodological concerns that I attempted to address in the moment. Thus, in 2015, when I conducted group interviews, I decided to focus on problems in the community and how “people” seek justice, as opposed to focusing on individual experiences and narratives. When I returned in 2017, I had established places for private individual interviews and was able to successfully complete these without the concern about uninvited “joiners.”

Group interviews included anywhere from three to eight people and were divided into different social groups, including local civil society, women, chefs, wise elders, teachers, and security forces. The decision to interview different groups, and how I came to define those groups, was based on discussions with close interlocutors and my previous fieldwork. I aimed to highlight different segments of the population who might hold a shared sense of common harms and disputes in the community and how they are addressed. “Women” may seem an odd fit given the other categories of local actors. I chose to include groups of local women for two reasons: (1) They tended to be underrepresented in the other groups, aside from civil society actors; (2) I was concerned that women might not speak up or that their contributions might be diminished by the men in the group. During my fieldwork in 2011, I had observed these gender dynamics on occasion, where some women were silenced in the sense of their ideas being disparaged, not being provided the space to speak, or choosing to remain silent. However, gender dynamics in Uvira, as anywhere, are complex and fluid. For example, I also observed plenty of situations where women, and not just activists or professionals, were outspoken, for example during mediation. In the context of the group interviews with women, discussions were robust and tended to focus on women's experiences, which I found useful and enlightening for my research. In this article, quoted group interviews are summaries of a part of the interview.

During individual interviews, I was guided by the issues, harms, and disputes raised by interviewees. In other words, they guided the discussion to the disputes or harms that they wanted to talk about and labeled as common and important. Regarding marriage, I asked interviewees if they would tell me about their marriage, how they met their spouse, and if there were any issues in the home. It goes without saying that all forms of domestic violence––physical, psychological, and emotional––are harmful, but some of these experiences were common, and women brought them up without prompting as they talked about their daily lives and relationships.

Finally, my research and analysis follow an interpretive approach. Conducting research over four different trips was useful, as it gave me time between trips to analyze the information collected, reflect on the information, my positionality, and my methodology. I pursued information on harms and disputes that participants and interlocutors identified as “common” or “frequent” in the community. In this paper, most of the data (i.e., quotes and observations) used reflect broader trends in the data I gathered, with two caveats. First, my research does not attempt to be representative or generalizable to broader DRC, or even eastern DRC, as my methodology was not created with that intention. Instead, I sought to draw out the nuances and complexities of women's everyday lives and experiences of harms, disputes, and justice in Uvira. Second, throughout the paper, I note when the data or analysis does not reflect trends in my research findings but which I found analytically relevant and interesting, such as the example of “inheriting” wives, discussed below.

Marriage as a Gendered Practice

In the remainder of this paper, I explore the possibilities of gender justice related to marriage in the space of emergent hybrid legality, starting with the different types of marriage––civil, customary, religious, and kurendeza––and their associated sociolegal standings. Tensions are especially evident around the distinctions between customary and civil marriages. In Uvira, the nuances of customary marriage practices of different ethnic/social groups are distinct, but those I became familiar with are gendered in a few common ways. First, men are often understood as the head of the household. Second, the payment of la dot (bridewealth)³ is central to legitimizing marriage. Third, polygyny is common. Fourth, inheritance follows male lineage. Fifth, men marry (or refuse to marry) adolescents, under the age of 18, sometimes after they become pregnant (see Dunn, 2022). Sixth, although less commonly practiced now, a wife may be “inherited” by a close male relative. These practices do not conform to most internationally defined and promulgated marriage norms that are seen to protect women's rights, summarized as monogamous relationships over 18 with equal ownership, inheritance, and divorce rights. However, many couples who have a civil marriage also follow customary marriage practices, obscuring the line between the two.

Notably, in the DRC, laws around marriage have been updated to reflect international standards. These reforms are meant to counter the elements of marriage practices that are detrimental to women by formally acknowledging only monogamous marriages,⁴ setting a standard minimum age for both men and women,⁵ and by institutionalizing more egalitarian division of property⁶ and inheritance practices.⁷ These guarantees are legally binding in marriages registered with the state, civil marriages. At the same time, the payment of la dot⁸ is still recognized as an important part of marriage practices; however, each region is supposed to set a maximum amount, as outlined in law.⁹ Local civil society and legal actors have attempted to promote women's rights by raising popular awareness around civil marriage rights, which have been integrated into legal consciousness, but without necessarily displacing other beliefs and practices.

In addition to customary and civil marriages, marriages often include religious ceremonies. Having a traditional or religious marriage is not a barrier to civil marriage; people can undertake all three marriage practices. Finally, there is one other marriage practice called kurendeza/kurendera. This was variously translated as mariage par rapt or passer par la fenêtre. Mariage par rapt, marriage by kidnapping or rape, was rarely mentioned in interviews. Although I do not have enough data to say with certainty, it seems like this may have been a practice that was slightly more common in the past. Passer par la fenêtre referred to instances where the relationship did not go through formal channels of engagement and payment of la dot, but the woman went to live with her “husband” by choice; this often occurred in cases of pregnancy out of wedlock and was not uncommon. Most of the people I interviewed did not have a civil marriage, even if they were aware of the legal benefits, but many did follow traditional marriage practices and/or had religious ceremonies, below I explore how people think about and engage with these options.

Perceptions and Practices

I argue that people's understandings and expectations around marriage are crucial to gender justice. Women's contextualized experiences, understandings, and meanings in marriage may reflect their own agency and be different from what international activists and Western feminists might expect. For example, as Mphaphuli and Smuts (2021) point out in their research on sexual violence in marriage in South Africa, women may not experience forced sex as something to be remedied, and, importantly, they enact agency in prioritizing the marriage and accepting their husband's sexual desires. Wielenga's (2022) edited volume also provides different examples of women's agency in the family and in on-the-ground justice processes in southern Africa. In Uvira, one misunderstanding from the liberal legal perspective is that women have no rights in traditional marriages, thus making civil marriage the route to advance gender justice for women.

By contrast, my research highlights the complex gendered meanings of several rights and entitlements within traditional marriages. For example, when I asked people what they understood about women's rights, they often pointed to rights they have in the home, vis-à-vis their husband, such as a right to clothing, food, and children. These responses led to unique insights into how people understand the expectations around customary marriages. Amélie (Interview, 24 March 2017) said, “A woman has the right to have clothes, to be well fed, to live without stress, live in peace in the house. The man has the right to be respected by his wife, to live free from stress.” Ophélie (Interview, 15 February 2017) explained, “Concerning the rights of women in the house: if you have a husband, he pays la dot, he feeds you (provides food), and when you have children, he makes sure they study to help them grow up.” Similarly, Agathe (Interview, 24 March, 2017) said, “I know that the man has a duty to clothe me, to feed me (provide food), and that I should be comfortable at home… even if it is the woman who works you will always say that it is your husband who buys.” Whether women always attain these rights is another question, but the common understanding is that they exist. Thus, contrary to the assumptions undergirding activism and legal reforms around marriage, traditional marriages are imbued with certain expectations and entitlements for women.

Additionally, local practices are flexible and have come into conversation with international norms and rights ideas. Women can be understood as participating in a dialogue about contextualized gender justice in marriage and contribute to structural changes through this dialogue. Notably, while the idea of women's rights has become a part of the local lexicon, its meaning does not solely reflect international standards but also more localized understandings of what women are entitled to in different spheres of social life. These discussions help build a contextualized understanding of gender justice in the home and related to marriage.

In terms of the ongoing dialogue about gender justice, Agathe lent additional insight, saying, “Starting from what we have been told about March 8th, it declares that the man must go to the kitchen. But, because of the custom of Bafulero, and the Congolese custom, we found this unfair.” But, later she added, “It's not bad because helping each other around the house is normal.” March 8th is International Women's Day and was a source of much local dialogue and organizing around women's rights when I was in Uvira in 2017. Civil society actors took this as an opportunity to advance the idea of “50/50” as a slogan and a conceptual tool for thinking about equality between men and women. Interestingly, there was significant debate between women in day-to-day interactions as to whether this included the idea that men should do more work in the home and kitchen (typically understood as women's work). This was hotly debated with some mobilizing actors challenging this idea and clarifying that “50/50” was supposed to be about women in politics. Still, the official message of “50/50” took on a life of its own in popular discourse, creating dialogue around gender roles in the home, and thus the meaning of gender justice. Both women and men in various socioeconomic situations participated in these conversations.

Interestingly, when I asked people directly about civil marriage, which holds legal guarantees for women, I received some unexpected responses. Among those who did not have a civil marriage, some held negative views of this practice, despite, and sometimes because of, the associated rights. Some people, including women, interpret civil marriage as an elitist practice of which they do not approve. For example, I asked a group of local NGOs (Interview, 24 April 2015) in Kiliba if any “problems in the home” were common. They replied:

Yes. For example, a maman wants a civil marriage, but the man refuses. With civil marriage, his wife might start to believe that she is special… If she asks for the civil marriage in addition to la dot, she will think that she is above others. Here the custom is if the husband dies his family gets his estate, but with a civil marriage they will have to split the money with the wife, and she will think that she is some sort of queen.

The group agreed that civil marriage was a source of family problems, although as our discussion continued it became clear that they were not against civil marriage,¹⁰ but they recognized it as a source of disputes. Interestingly, their discussion suggests that a woman who attempts to have a civil marriage is sometimes seen as acting inappropriately or disrespectfully. By contrast, Alain (Interview, 28 March, 2017) explained that he had a civil, customary, and religious marriage “to honor my wife… First, I loved her. I accepted her as my wife, and I saw that she would be honored in the regard of other women. I saw fit to go through all the stages; I went to introduce myself to her family, then we also went to the civil status officer, then we went to the church for the nuptial blessing.” Interestingly, he is affirming the social understanding of the “superior” standing of women in civil marriage. In the same vein, Claudine (Interview, 27 March 2017), a single, 19-year-old mother of one, said,

I find that civil marriage is different…the one who has a civil marriage––and if there are problems in that marriage—the woman has the full right to complain to the state. Then, they will call the husband and question him. If the husband shows that he is not able to live [well] with his wife, the state proceeds to the division of the goods between the husband and the wife. There, I find that the woman is at an advantage, unlike the one who got married without formalizing it.

While, for some, the status of civil marriage reflects something to be critiqued, others respect and pursue such status; in Alain's case, to honor his wife. Notably, Alain's education was different from most of my interviewees in that he had taken some university courses.

From this exploration of marriage, I find that people hold diverse interpretations of different marriage practices and pursue various options. At the same time, it needs to be noted that women are often in a less powerful position vis-à-vis their spouse and family to advocate for a civil marriage, making the rights and protections of the law differently accessible and their practical meaning dependent on social position, as suggested in some of the feminist critiques of liberal legalism. Women who are relatively poor and without formal education may have a harder time negotiating with a potential spouse for a civil marriage. However, that does not necessarily leave these women without expectations in their marriages or recourse to justice. As already noted, traditional marriage practices support women's entitlements in marriage, such as clothing, food, and well-being. Women and other actors are exploring the meaning of different marriage options for women, reflecting some of the space for the process of gender justice within emergent hybrid legality. Beyond the different marriage practices, emergent hybrid legality provides space for more equitable expectations and outcomes in cases of separation and divorce, in all types of marriage, as I discuss below.

Divorce and Separation

In civil marriage, women have legal rights in cases of divorce, notably related to the division of property and alimony payments; in customary marriage, women are not entitled to such rights. The only potential entitlement I was informed of in traditional marriage separations is the repayment of la dot in certain circumstances. Usually, women are then expected to return to their parents’ home. At the same time, as I will show here, there is little difference between an official divorce in civil marriage and divorce with customary marriage in terms of women's lived experiences. Women's support systems typically advise against leaving marriage––any kind of marriage––due to stigmatization and hardships that follow. Ending a marriage is generally seen as an exception or last resort. Discussions and practices around divorce and separation, often through justice procedures outside the formal courts, speak to the process of gender justice through negotiations of what women are entitled to in these situations, which do not strictly adhere to historical tradition or legal expectations. Instead, space is made for women's voices to be heard and taken seriously and for negations. Although, as I will show, the outcome is not formal equality, contestation and compromise within justice spaces disrupt the imposition of liberal legal logic but do not discard ideas that may be valuable to gender justice in situ.

In Uvira, social perceptions and understandings of the implications of divorce (and separation) limit its practical application for the average woman. For example, in the group interview (13 April 2015) with local chefs cited at the beginning of the article, they explained that the more women learn and claim their rights the more divorces there are, which they interpreted as a negative social phenomenon, but they also noted that this was linked to the problem of people going directly to courts rather than trying to resolve their problems through chefs first. Similarly, in a group interview (17 April 2015) with local women, they explored the idea of divorce, noting local stigma:

She will be discriminated against by her family and in the community. They will say that she is prostitute. Members of her family will be influenced by community members—everyone will, both women and men. Lots of people don’t want divorces; they want women to stay in the state they are in forever… She may find someone else to live with to help her, but others will say that she is a prostitute. If there is a separation she will live with the kids, even up to 6 kids, she will take them with her because she knows if the man did not look after them originally, he will not now either… When women get divorced, they are sometimes threatened. They have to rent small houses to live alone.

Later in the interview, I learned that the threats are often from their husband's family, and sometimes their own. These two group interviews were done in Makobola, a rural, subsistence area of Uvira, and speak to the concrete difficulties of divorce, especially for certain segments of the population. Thus, despite the law's goal of protecting women and promoting equality, the practical reality of social stigma makes claiming this right problematic, and even disadvantageous for some.

Notably, stigma exists around both divorce and separation, with some mediators––especially those functioning outside NGOs, such as wise elders and family members––focusing on keeping couples together. “Il faut supporter,” meaning one must “bear,” “tolerate,” or “handle,” was a refrain I frequently heard in reference to marriage. For example, Agathe (Interview, 24 March 2017) said she would supporter if her husband frequently hit her, because she loves him. Aline (Interview, 9 March 2017) explained in relation to her husband's infidelity, “I would not know how to leave with my children. Therefore, for them, I have to supporter everything.” Sophie, who eventually left her husband, explained, “When I went to the police, I wanted the State to help me find the solution because I had supporter for a long time, but I failed. I had also sought advice, but it had not worked…” These statements speak to the premium placed on the expectation that, to keep the family together, women should “put up with” problems in the marriage. This idea circulates widely and is promoted by some who serve as mediators.

For example, Soleil (Interview, 9 March 2017) was known locally as maman sage, or wise mother/woman. In our discussion of the types of problems she addresses, disputes between spouses were important. I eventually asked, “Have there ever been cases where things are really not going well, and you suggest to the wife to return to her family?” She replied, “I can't say that because it happens to me too. The problems are in every home. During the day you will see that you are well, but at night it is something else. Now, you are going to advise your friend to leave, while you stay to build your own marriage?” Our interpreter added, “And if this faith exceeds the limits?” Soleil: “At least she decides on her own; tomorrow she can't say that her marriage was broken up because of someone else.” The deep importance placed on marriage and maintaining the family were evident in my research, but Soleil also emphasizes women's agency in this decision. This is not unique to Uvira, or even Congo. Scholars have emphasized the cultural logics of maintaining the family, even when some forms of harm or violence are present in the home (e.g., Mphaphuli and Smuts, 2021). Wielenga (2022) emphasizes family, community, and relationality as important factors in “justice on the ground” in Southern Africa, specifically in terms of gender justice. Notably, these scholars highlight women's agency in these situations rather than assuming an essentialized victim status. In Uvira, ideas and practices prioritizing the family are widespread, but they are not monolithic or uncontested, and there are mediators who also help facilitate separation in ways that are more favorable to women, highlighting the possibilities for gender justice within contexts of emergent hybrid legality.

Local organizations frequently provide mediation and support in cases of separation or divorce. For example, they can help mediate child support and the division of property. I observed one such case at the CPC. The CPC is a local NGO that primarily focuses on land disputes, such as those around property, land titles, and plot boundaries. Conflict resolution and reconciliation around these issues is part of their mandate. After a couple separated, the woman stayed at their house, which she had contributed financially to constructing, but the plot of land was not in her name. When she became pregnant with her new “husband” (they were not married through any of the practices discussed in this paper), her ex-husband wanted her to move out, but did not offer any compensation. Although some interpretations of “tradition” might favor the ex-husband in this case, the CPC mediators brought the two sides together to help negotiate a more just resolution. In the end, the ex-husband agreed to sell the plot of land and compensate his ex-wife an agreed upon amount.

This case illustrates that within the context of emergent hybrid legality, space is provided to negotiate the distribution of property even outside civil marriage and formal court processes. Neither patriarchal “traditional” norms nor formal legalism defined the CPC process. Instead, mediators acted in conversation with the different parties in an understandable and accessible process to come to a resolution that reflected a shift in certain gendered norms related to the division of property. This space is flexible, but imperfect. For example, in a different dispute between spouses, I observed the same CPC mediators limit the space provided for a woman and her female representative to speak vis-à-vis their male counterpart. This speaks to my conceptualization of gender justice as an ongoing process of negotiation and contestation, rather than an ideal type.

Additionally, there is some indication that customary mechanisms and authorities are beginning to integrate aspects of the law into their rulings about inheritance to make outcomes more equitable for women (Group interview, local women, 17 April 2015), or allocating some of the inheritance to women on an ad hoc basis (Interview, village chef, 17 April 2015). While these shifts may seem less meaningful because they are not guaranteed, in practice they are more readily implementable as most interlocutors I spoke with believe that disputes over inheritance should, and usually do, go through some customary or informal channel. Thus, ongoing social dialogue has shaped shifts in socioeconomic practices to be more just for women.

Women's attempts to obtain child support or alimony payments in cases of separation or divorce can be an additional hardship. However, organizations outside of the state legal system are facilitating these claims as well. BB (8 May 2015), another local organization that works in dispute resolution, noted that if a man leaves a relationship, the woman can have a hard time with childcare. They can also experience difficulties getting alimony payments. The day I interviewed the director of BB, they were hearing two cases––an alimony case and a case where a woman was seeking financial support from her child's father to pay for his child's hospital fees. I attended both proceedings. In both, payment was agreed to, but follow ups were necessary to ensure that they were made in full. In neither case was the type of marriage discussed, it was simply accepted that everyone involved recognized that they were married. Arguably, the space that emergent hybrid legality provides for the integration of law and local culture into mechanisms that are accessible to resolve marriage-related disputes in ways that support women's needs can be seen as the ongoing development of ideas and practices of gender justice.

Further, mediators and local organizations recognize that the division of goods in cases of separation have been gendered in ways that are disadvantageous to women. Some have begun to reevaluate these practices and shift their mediation approach to be in conversation with the local population's changing ideas, thus responding more equitably when disputes are brought to them. These mediation services are normalizing new ideas and contributing to shifts in popular understandings of customs. For example, to address the gaps between civil and customary marriage rules, BB developed a unique approach to their advocacy work. They tried to shape popular legal consciousness by telling people that if la dot was paid, then the marriage should still be recognized like a civil marriage (Group interview, BB, 30 January 2017. Includes a staff lawyer). In other words, those who fulfilled the customary marriage obligation of bridewealth payment should still be treated to the same equality of inheritance as in civil marriages, even if they could not claim those rights in the court, thus shifting the gendered socioeconomic structure of inheritance practices.

When mediators acknowledge bridewealth payment as more or less equivalent to civil marriage, they are participating in the construction of emergent hybrid legality and in the creation of contextualized gender justice, while not imposing external values and norms, they incorporate and modify them to the local context through accessible fora, like mediation. These local actors do not just vernacularize international women's rights,¹¹ they bring ideas to ongoing local dialogue and spaces of contestation, and play a role in rethinking and shaping practices. This is a step toward gender justice by normalizing women's ability to claim property, goods, and child support vis-à-vis her spouse, even in traditional marriages.

Wife Inheritance

Wife inheritance (this is my term; not one that was used locally) is one final gendered practice that has been a source of disputes and arises in the customary marriages of some social groups. This refers to a situation where a married man dies and his brother, or other male relative, would “inherit” his wife. Some local organizations conceptualize this practice as a type of forced marriage (Interview, 7 February 2017). I found acceptance for “inheriting” wives to be limited, but it has not been completely abandoned and is part of the social dialogue around gender justice. Notably, mediators and other justice actors working outside of the courts are playing an active role in ending the practice.

The issue arose when I asked a mediator, “What kinds of cases are considered customary?” He gave the example of certain problems within the family. “For example,” he said, “the man dies and leaves his wife and child. According to custom, a younger brother is then supposed to “take” the wife, but if she refuses, the case can go to the mwami because custom does not give her the right to refuse” (Group interview, CPC mediators, Kavimvira, 8 February 2017). This has been relayed to me as a problematic customary practice by a few different sources, not just trained mediators.

In a group interview with local chefs, they elaborated upon the idea that disputes arise around local customs and inheritance. This led me to ask: “Is it good to question custom?” To summarize, the response was:

Yes, in some ways…If a man dies, typically the expectation is that there is another man in his family who is supposed to marry the wife. But, is it really normal to just give her to another person? Here the custom is excessive. She should not be given away to others; this practice was done without the woman's consent. Now people see that this is not always good, and the woman has to want to do it and be given the choice. In this case it was good to revise this custom. (Group interview, chefs and sages, Makobola, 13 April 2015)

These statements from local, traditional leaders highlight the flexibility around practices that are perceived as customary, especially if they are locally viewed as excessive or harmful. These shifts in norms and practices may not have resulted from changes to laws. Although, the promulgation of information about women's rights and civil marriage rights have likely influenced the discussion. The comments by these customary chefs highlight the reality that traditions are not static and are indeed responsive to broader social discourse around gender justice. It also points to the reality of change developing within communities and rather than solely in response to the law.

While marriage inheritance seems to be on the decline, disputes around the practice still arise. For example, BB staff (Interview, 30 January 2017), discussed a dispute they had recently resolved that links broader inheritance issues with this marriage custom. Below I have summarized the dispute.

A 26-year-old man was killed. He and his wife had a plot of land, a house, and one child. They were not legally married, and no dowry was given, thus the marriage was ambiguous even according to traditional standards. The Bavira custom is such that the deceased's brother “inherits” the marriage. At the funeral, the eldest brother presents his younger brother to the wife of the deceased and asks them both if they agree to live together. In this case, the man said yes, but the woman refused.

The eldest brother called Jerome, a lawyer and one of my interlocutors, because the woman wanted to keep her husband's plot of land, but custom specifies that to do so the younger brother must live with her on the land. Jerome said they should refuse to allow her to keep the plot because the son is the real inheritor. The problem, he explained, was that if they let her keep the plot, when her son got older, he would take her to la justice because by law he is the rightful inheritor.¹² She could have benefitted from access to the land if she had accepted her husband's brother, as per custom. But, she would not accept him; now she lives with her parents. Her husband's eldest brother oversees the estate, and she must ask him for anything to fulfill the child's needs, but she herself is not entitled to anything.

This particular case illustrates the different factors that go into mediating between law and custom. The traditional practice of “wife inheritance” was not reinforced; however, mediators foresaw long-term conflict if they gave the woman the plot of land. The compromise was to bypass the traditional practice of “wife inheritance,” but maintain the land inheritance and management of the estate by the older brother. Emergent hybrid legality provides space for exploring and modifying historically adhered to practices to improve women's situation and status. However, these shifts toward gender justice are still constricted by broader gendered worldviews, practices, and structures. Changes may be incremental, but they occur in ways that form a part of the broader context; thus, although they may be contested by some, there is a chance for shifts to be accepted and long-lasting.

Closing Reflections on Gender Justice and Emergent Hybrid Legality

In contrast to other studies of marriage during conflict and transition, which tend to focus on marriage into rebel organizations or the reassertion of gendered violence in the domestic sphere during transition, my research centers the changing justice landscape and the possibilities created for gender justice. Some feminist scholars have argued that transition serves as a window of opportunity for changing gender norms and inequality (e.g., Reilly, 2009), but this has tended to focus on changing laws, state institutions, and formal structures, often through international influence on transitional justice and peacebuilding (e.g., Berry and Lake, 2021). My research highlights that the transition has indeed been a space opened for international influence on women's rights and legal reforms (see also Lake, 2014), but this influence encounters local dynamics and produces context-specific ways of being and thinking about gender justice. In other words, we need to understand this window of opportunity more broadly, the realm of possibility needs to consider women's agency in their everyday lives, the efforts of local civil society actors, and the diverse array of justice practices used to address quotidian harms and disputes.

Earlier, I outlined my understanding of gender justice as a process rather than predefined end goal. Emergent hybrid legality reflects a space where the practices and institutions of legal pluralism emerge out of the particulars of the context and awareness of international liberal legal practices and preferences, without necessarily submitting to them; as such, it is a kind of living law or justice. Thus, I return to the question of what possibilities emergent hybrid legality holds for gender justice? Through my exploration of different marriage practices, separation/divorce, and associated disputes, I illustrate how law and legal reforms have become a part of the dialogue around gender justice, but also that emergent hybrid legality creates space for contextualized discussions and ideas around gender justice to develop. Notably, this space allows for contestation, participation, and negotiation that can reference and incorporate local worldviews and practices, national laws, and international norms and standards. This creates microcosms of broader debates and discussions about what gender justice means in context.

Further, these mechanisms provide space for ongoing shifts in gendered norms and expectations in marriage, such as women's entitlement to goods and/or property in the case of separation, and the reassertion of important contextual elements of gender justice, such as women's entitlements (rights) in customary marriages. Finally, the element of gender justice that I want to emphasize is challenging internationalized neo-colonial practices and interactions. Emergent hybrid legality allows for local actors to choose and modify elements of internationalized legal norms and women's rights in ways that are locally relevant. In other words, they assert agency over how their local problems are interpreted, defined, and addressed instead of being the object of problematic international interventions and activism that impose a particular legal framework, which may be accompanied by reductive and simplistic accounts of local experiences, populations, and culture. Thus, emergent hybrid legality does create space for gender justice as an emergent process. To be clear, and inherent in my understanding of gender justice being a process defined by both dialogue and contestation, it is not a teleological process, but a grounded one. Hence, tensions, debates, uncertainty, and even injustice may be part of the process, but as it is dynamic, the possibilities remain present within emergent hybrid legality.

Understanding gender justice as a process is an important starting point for making sense of and understanding gendered dynamics in contexts transitioning from war to peace, and beyond. The structural and microdynamics of these processes could be further explored in various contexts across the globe to identify similar trends and possibilities for gender justice.

Footnotes

Acknowledgements

I would like to thank the Law & Courts Junior Women's Writing Group for their feedback and reflections on an early draft of this paper. I also want to acknowledge the work of the anonymous reviewers who provided thoughtful and nuanced comments, which helped me improve this paper.

Declaration of Conflicting Interests

The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This work was supported by the Social Sciences and Humanities Research Council of Canada; Humanities Institute, University of South Florida; Political Science Department, University of South Florida.

ORCID iD

Holly Dunn

Notes

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