Traditional & Informal Justice Systems: Actors & Activities

This section presents the main actors involved in the field (both insiders and outsiders) as well as the main types of activities engaged to support traditional and informal justice systems in peacebuilding contexts, namely: research; reforms and codification; financial and technical support to existing structures; creation of new forums or mixed structures; monitoring; training and capacity building; awareness-raising and information dissemination; advocacy and lobbying. It also addresses the question of strategies to guide decisions regarding how to link formal and informal justice systems.

Strategies: concretizing linkages between formal and traditional/informal justice systems

Some choices need to be made in terms of linkages between formal and traditional/informal justice systems. In general, it may be helpful to think of formal and informal/traditional justice systems as two ends of a single continuum/spectrum: "At one end is a strategy that is initiated, organized and controlled by (national or international) state institutions. Its procedures are formal and rational-legalistic...At the other end of the continuum are policies that are community-initiated and community-organized. They are predominantly informal and ritualistic-communal."1 In many post-conflict contexts both formal and informal/traditional justice mechanisms function concurrently, though their relationship is often ill-defined and fraught with tension, which may be an impediment to the establishment of a well-functioning justice sector that encompasses both formal and informal elements.

Three types of linkages between formal and traditional justice systems2

Complete/Full Incorporation(ex: gacaca courts in Rwanda)

  • The informal justice system is fully incorporated or given a formal role within the statejustice system.
  • The formal state system may codify or incorporate as common law the informal or customary rules or norms of decision into its decision making process.
  • The informal structures may also comprise one section of the lowest tier of courts within the entire formal state structure.
  • Specialized formal courts may be established to hear only disputes arising under customary law.
Limited Incorporation/Co-existence(ex: the Community Reconciliation Processes (CRPs) in Timor-Leste)

The formal and non-state justice systems coexist within the same state system and retain their distinct jurisdictions, with admittedly some form of supervision by the state system over the NSJS.

Abolition

The state explicitly abolishes the non-state/traditional justice mechanisms through legislation.

The benefits and shortcomings of the three models3

The benefits of full incorporation are that it provides for judicial supervision over informal courts, facilitates linkages between customary and statutory law, and may help to clarify jurisdiction over different types of disputes. But there are a number of problems associated with full incorporation. Codification is often seen as a problematic and potentially harmful endeavor because by "freezing" customary practices into law, it deprives customary practices of fluidity and the potential to change over time, a key feature and advantage. The top-down imposition of informal systems may likewise erode another central feature of these systems: their reliance on voluntary community participation and on social sanction as the principal means of enforcement. 

Limited incorporation/coexistence is seen as the most beneficial model of complementarity, for it can potentially promote and strengthen human rights standards in the informal/traditional system, clarify the jurisdictional division of labor between the formal and informal systems, and at the same time rely on key advantages of informal systems: self-regulation and community-driven demand for and supply of justice.  But this model is also not without its shortcomings. As with the full incorporation model, state regulation may impinge on and thus erode the popular and voluntary nature of informal/traditional justice systems. Also, the promotion of informal/traditional alternatives may reduce the pressures or incentives for reforming the formal justice system.   

In short, there are both advantages and disadvantages to these linkages between the formal and informal/traditional justice systems. The exception is the abolition model, which is seen as entirely disadvantageous because it essentially means that modes of dispute settlement that are widely accepted and resorted to by many people, especially in rural areas, falls outside the law as recognized by the state. It is also worth noting that these models are "ideal" types, and there may be an array of formal-informal linkages falling between them.4 Ultimately, what matters is not the value of models, but rather specific ways that complementarity is actually carried out on the ground.

Complementarity

There is growing recognition of the importance of "complementarity" between formal and traditional/informal justice systems in post-conflict justice, defined as: "Changes each system can make to itself to strengthen the links between the two systems and to enable it to work in a more supportive relationship with the other. In addition, these changes could also improve each system as each would be learning from, and adapting, positive aspects of the other system."5

The current emphasis on "complementarity" stems from the idea that formal and informal/traditional justice systems should not be seen as being in competition or mutually exclusive. Rather, the relationship between the two should be recast as one of cooperation and mutual support. Accordingly, traditional/informal justice systems "do not exist in competition with the formal justice system. They are complementary in the sense that they cover the gaps left by it. They may overlap with the formal system in some cases.  For the most part, though, they provide a modicum of justice and security to the population in areas where the formal system cannot."6 

The central idea behind the push for complementarity is that peacebuilders should build on the comparative advantages of both systems. As a UNDP study on post-conflict governance notes: "'Traditional' adjudication is best suited to conflicts and disputes between people living in the same community who seek reconciliation based on restoration, and who will have to live and work together in the future. Formal justice, on the other hand, is best able to provide the legal and procedural certainty required where serious penalties such as imprisonment are regarded as appropriate, or where the parties are unwilling or unable to reach a compromise. Access to justice by disadvantaged people requires both formal and traditional systems; the way they enrich each other will necessarily vary in each context. Formal systems may sometimes need to be 'informalized' to become user-friendly, and traditional systems formally recognized and set under the oversight of the courts to ensure fair and impartial justice. The two working in tandem is critical in post-conflict settings where the formal system is often in an embryonic stage and unable to handle the colossal caseload."7

As for transitional justice issues, practitioners and scholars stress that non-criminal traditional/informal justice is better left to "reintegrating low-level perpetrators and child soldiers back into their local communities" and focusing "on its ordinary subject matter (generally, property, restitution, and community reintegration)," while international criminal justice is better suited "to prosecuting high-level perpetrators who threaten national and international peace and security."8

Potential areas of complementarity and mutual adaptation9
Areas of Mutual Adaptation

State

Traditional/Informal Justice System

Mutual Learning

Learn about the customary justice system's institutions, principles and procedures

Learn about the state justice system's institutions, principles and procedures

Sharing of procedures

Use of more customary procedures in state courts, for example by creating hybrid institutions such as village courts;

Consideration of the utility of introducing good management initiatives from the state system; cooperation with state accountability institutions, such as national human rights commissions, that may monitor human rights compliance

Adoption of a less adversarial approach

 Awareness programs about different types of decision-making procedures, especially in areas where there is domination by traditional leaders

Reform the laws of evidence to make them less complex and more culturally relevant

Learn about the state's rules of evidence that may be useful

Sharing of substantive laws/ principles

Codification of customary laws to make them accessible to jurists and/or harmonize them with statutory law; use of substantive customary law in state courts, by mandating its use; recognition of minority or indigenous rights and specifically their right to traditional justice

 Use of human rights principles from the state system
Use of key players/ institutions from the other system(s)

Use of chiefs/ traditional leaders in state courts

Use of state officials by the customary justice system

Referral of issues/cases to the customary justice system

 Referral of cases to the state system

Involve traditional leaders in Judicial Appointments Committees (may not exist in some/ all state systems for example where the appointments are the prerogative of the executive)

 Involve a member of the state judiciary in highest levels of the customary system, either by involvement in appointments or as a member

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Main Actors

Insiders (local and national)

  • Community members
  • Traditional leaders (some of whom may also be religious actors); non-traditional leaders such as elected village (or equivalent) heads
  • Local NGOs (non-governmental organizations)
  • Local scholars and academic institutions
  • Members of the formal justice system (judges, lawyers, officers)
  • Specialized transitional justice mechanisms (such as hybrid courts, truth commissions)
  • Representatives of the state (the government)

Outsiders

  • International NGOs
  • International organizations
  • Donor agencies (bilateral and multilateral)
  • International components of specialized transitional justice institutions (such as hybrid courts, international tribunals, truth commissions)
  • Outside scholars

Policy Options for State Engagement

A key challenge in post-conflict contexts is to rebuild the legitimacy and effectiveness of the state; and a central arena in the reestablishment of state authority is the justice system.  Thus the imperative of state-building has important implications for informal/traditional justice mechanisms: namely, some degree of state intervention is bound to happen. The key issue concerns the underlying purpose, the process and the implications of state engagement with informal/traditional justice mechanisms. 

The state, through legislation and the formal justice system, has at its disposal an array of policy options.  These vary in terms of the degree of state engagement, the degree to which informal/traditional justice mechanisms are formalized, and the nature of the interaction between the formal and informal/traditional realms.  

Yet there are some obstacles to constructive state engagement. First, for the reasons discussed above in that section, members of the formal justice system tend to criticize and look down upon informal/traditional justice. Moreover, since post-conflict contexts are characterized by competition among local actors over scarce donor funds, members of the formal justice system may be resistant to supporting or participating in donor activities in the informal/traditional justice sector. Also, some stakeholders, such as lawyers or even judges, can feel threatened by the introduction of processes that would circumvent their role. Without proper preliminary analysis and outreach, such parties can attempt to block the progress of the work on traditional/informal justice.

The degree and nature of donor engagement

Regarding the donor community, there is a glaring discrepancy between minimal donor assistance to and the widespread local use of traditional/informal justice systems. As one report states, "Given the prevalence and importance of customary legal systems in most developing countries of the world, the relative lack of attention to the workings--and effects--of these systems by development practitioners is striking, even if not surprising."10 

Two examples illustrate the lack of donor attention to traditional/informal justice. The United Nations Development Programs (UNDP) support to the justice sector nearly doubled during the 2000-2005 period, from fifty-three to ninety five countries. In 2005, eighty countries received support activities for the formal justice system, whereas only seven countries received support to informal justice systems, and another eight countries received support for some type of alternative dispute resolution mechanism.11 The second example is from the World Bank, which is one of the major donors to justice sector reforms around the world. Of the seventy-eight assessment of legal and justice systems undertaken by the World Bank since 1994, many mention the prevalence of traditional justice in the countries looked at, but none explore the systems in detail or examine links between local level systems and state regimes.12 

Instead, the donor community has focused almost exclusively on providing aid to formal justice systems in developing countries in general and in post-conflict countries in particular. What accounts for this apparently single-minded focus on the formal justice system? It is in part explained by the fact that many people who are in charge of or work on the donor assistance programs are beholden to a dominant if often unarticulated preconception of what a justice system looks like or ought to look like. As Kristina Thorne, from the Centre for Humanitarian Dialogue, in Geneva, insightfully notes: "This reflects our understanding of justice: formal, predictable, and equitable, with strict procedures and accountability at every level. Mostly, though, it does not reflect the prevailing conditions on the ground: the lack of resources, training, infrastructure, credibility and authority."13  Go to Judicial and Legal Reform/Reconstruction

Another reason for the reluctance of donors to intervene in traditional and informal justice systems is precisely because of its perceived "invisible," informal, difficult-to-identify characteristics. For practitioners involved in judicial reform, focusing on the formal justice system is relatively straightforward because, at least superficially, it consists of a set of concrete institutions and officials. The same is not true of traditional and informal justice systems. Last but not least, the problem of funding traditional and informal justice mechanisms is compounded by the legitimacy problems associated with post-conflict traditional justice.  Go to The erosion and potential distortion of traditional authorities and norms

Yet, it would be misleading to suggest that donors have not been involved in traditional justice in post-conflict societies. On the contrary, in some cases, especially in Rwanda, Burundi, and Timor-Leste, there has been considerable donor involvement in revitalizing traditional justice mechanisms meant to address post-conflict justice issues. For example, in the case of the gacaca courts in post-genocide Rwanda, "virtually all major donors supported the gacacain one way or the other: they financed the training of the 250,000 inyangamugayo ('persons of integrity') who would serve as judges, funded the wooden benches on which these judges (nineteen per community) would sit, the red motorcycles on which the government monitors would go from one meeting to the other and the general, complicated logistics of holding trials in 11,000 jurisdictions."14 

Nonetheless, despite the increasing rhetorical acknowledgement of the importance of traditional and informal justice systems, the degree and nature of donor engagement remains an open question.

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Activities

Research

All practitioners and scholars agree that the biggest challenge to a balanced and well informed work with traditional/informal justice systems is the existence of a knowledge gap. As a consequence, many actions have been decided on the basis of "weak data, ex ante evaluation and speculation."15 An increasing number of international and local NGOs, in collaboration with academics, are conducting or supporting research in legal anthropology about the existing traditional/informal justice system. This is particularly important as the impact of war on the system is often unknown and research conducted before the war may have lost part of its relevance. Research should address both the particular rules applied in situations of dispute and what the systems reflect of "the ways social groups conceive of ordering, of social relationships, and of ways of determining truth and justice."16 Ethnographic survey methods are generally used in this context to document "the range of practices of conflict resolution and reconciliation that people and communities are adapting and retooling."17 These researches can be part of actual audit of the informal justice sector, as part of a large reform of the justice system.18 A lot of research has also been undertaken over the last two decades by development anthropology on customary law to address land tenure issues; bridges need to be built there as these conflicts constitute a high percentage of disputes in need of resolution in the aftermath of most wars. This knowledge can also help to facilitate a contextually sensitized application of the norms and standards of international humanitarian and criminal law.19

Reforms and codification

Governments may request the help of outsiders with writing down (and sometimes codifying) customary law in order to make it accessible to jurists and/or harmonize customary law with statutory law. Past experience with restatement and other codification projects suggests that there is a danger that law will become "frozen" and that judges and lawyers will start formally applying customary law without taking into account the particular context. At this stage, work with multidisciplinary teams, including anthropologists, helps to understand the norms and principles of non-state systems, and assess options for collaboration between state and non-state systems.20

Reforms may also be undertaken to incorporate some customary principles, rules and procedures in the law and state courts (in particular to simplify the laws and make them more culturally relevant). Local governments may also chose to incorporate some elements of the traditional/informal justice system into the lower levels of the formal judicial system. In some contexts, this may be viewed as a contribution to the effort to acknowledge indigenous or minority rights by formallyrecognizing the use of traditional/informal justice systems by particular groups.

Another set of reforms may actually concern the traditional/informal justice system itself. The state may require it to comply with human rights standardsor (new) constitutional provisions. State accountability institutions, such asHuman Rights Commissions, may play a role in monitoring compliance.Governments may also enact legislation to define and regulate the traditional/informal justice systems.Self-regulation may be initiated by the systems themselves, which may (ormay not) be encouraged by the state.

Establishing or reinforcing the linkages between the two systems and facilitating the use of both is key to any reform since simultaneous use of formal and non-formal systems is a reality for a significant number of people. This might be facilitating by the establishment of mixed working groups.

Financial and technical support to existing structures

The state may assist or work with the traditional/informal justice system, including by providing funds or authorizing international actors to provide such a support. Informal or traditional systems for settling disputes may themselves ask for assistance with formal record keeping. This might be of use, for instance, during appeals in formal courts or for monitoring decisions using objective information. Such initiatives can have positive results, but should be carefully designed. Elaborate or computerized systems are generally considered not to be appropriate, though they may be requested to enhance the status or power of the institution. Before measures are designed, it will be important to identify what the recorded information will be used for, how the system will be maintained and what linkages with the formal system are envisaged.21

Creation of new forums or mixed structures

The state may set up alternatives or complements to the formal system, which draw on the traditional/informal justice mechanisms, and assist to address specific post-conflict disputes, such as land tenure. Hybrid institutions may be created at the village level. In between the "state-sponsored" and "community-based" mechanisms are forums set up with the support of community activists or non-governmental organizations (NGOs) to mediate disputes in areas affected by armed conflict and discuss concerns of the community in relation with justice issues. They generally draw from community norms with some adaptations, for instance requiring representation of youth and women in decision-making. Some observers have raised questions as to whether, in NGO-assisted initiatives, decision makers and leaders are accountable to the NGO that provides the resources or to the community served.22

Monitoring

Monitoring of tradition-based practices by national institutions (such as Human Rights Commissions), mixed bodies or NGOs may help ensure that they respect a certain number of international standards, dont violate human rights, in particular those of minorities and women, and comfort their credibility. Most practitioners recommend such monitoring processes.

Training and capacity building

Local and international NGOs are often at the forefront for the training of the personnel of the traditional/informal systems on procedural or substantive issues. Some may train them as paralegals to advise or represent parties to a dispute in the formal system or to incorporate new techniques of mediation for instance. Human rights training are also organized to help improve the rules and practices of traditional/informal systems so that they comply better with international human rights standards (e.g. non discrimination, nonuse of inhuman or degrading punishments).

Awareness and training programs are also designed for representatives of the traditional/informal system and traditional leaders to learn about the formal judicial system; similar programs target judges, lawyers and police officers of the judicial system about the traditional/informal justice system. Workshops and seminars uniting both groups may support mutual learning.

One of the limitations noticed with many training programs is that their impact may be limited if they are not accompanied by practical measures to lead to sustainable changes.23 Parallel efforts are needed in cooperation with local Universities (in particular the faculties of law) so that teachings about the traditional/informal justice system are incorporated in the curriculum of students. Last but not least, some practitioners recommend efforts to establish South-South networking initiatives and reciprocal exchanges of expertise, in particular on the potential role of traditional mechanisms and practices in the area of transitional justice.24

Awareness-raising and information dissemination

NGOs and the media can play a key role by informing and educating the general population on the existence of diverse systems inside a single society, organizing public debates on the linkages between the different systems. Some NGOs organize a wide range of activities, including the organizations of outreach days on alternative dispute resolution, the organization of public conferences, the publication of books or leaflets on the traditional/informal justice system.

Advocacy and lobbying

Local and international NGOs are involved in advocacy and lobbying efforts to promote traditional/informal justice at large or specific mechanisms such as mediation, so that the legislation gradually takes those efforts into consideration. The conditions for such activities depend on every local specific political circumstance. In all cases, local NGOs are the best situated to play that role.

1. Luc Huyse, "Introduction: tradition-based approaches in peacemaking, transitional justice and reconciliation policies," in Traditional Justice and Reconciliation after Violent Conflict: Learning from African Experiences, ed. Luc Huyse and Mark Salter (Stockholm: International Institute for Democracy and Electoral Assistance, 2008), 6.
2. Brynna Connolly, "Non-State Justice Systems and the State: Proposals for a Recognition Typology," Connecticut Law Review (December 2005); and UK Department of International Development (DFID), Briefing: Non-state Justice and Security Systems, May 2004, , 12.
3. Drawn primarily from Ewa Wojkowska, Doing Justice: How Informal Justice Systems Can Contribute (Oslo: United Nations Development Programme, Oslo Governance Centre, December 2006).  
4. See Miranda Forsyth, "How to 'do' Legal Pluralism," (Social Science Research Network, June 2007).
5. Ibid., 10.
6. Kristina Thorne, Rule of Law through imperfect bodies? The informal justice systems in Burundi and Somalia (Geneva: Centre for Humanitarian Dialogue, November 2005).
7. United Nations Development Programme (UNDP), Governance in Post-Conflict Situations: Justice, Security, and Human Rights, 86, para.4.4.
8. Lars Waldorf, "Mass Justice for Mass Atrocity: Rethinking Local Justice as Transitional Justice," Temple Law Review 79, no. 1 (Spring 2006), 37.
9. Adapted from Forsyth, "How to 'do' Legal Pluralism," 11; and from UK Department of International Development (DFID), Briefing: Non-state Justice and Security Systems, May 2004, 12.
10. Chirayath, Sage, and Woolcock, "Customary Law and Policy Reform: Engaging with the Plurality of Justice Systems," 1.
11. Wojkowska, Doing Justice: How Informal Justice Systems Can Contribute, 11.
12.  Chirayath, Sage, and Woolcock, "Customary Law and Policy Reform: Engaging with the Plurality of Justice Systems," 3.
13. Thorne, Rule of Law through imperfect bodies?
14. Barbara Oomen, "Donor-Driven Justice and its Discontents: The Case of Rwanda," Development and Change 36, no. 5 (2005), 902-903.
15. Huyse, "Introduction: tradition-based approaches in peacemaking, transitional justice and reconciliation policies," 6.
16. Merry Sally Engle, "Legal Pluralism," Law & Society Review 22, no. 5 (1988): 889.
17. Rosalind Shaw, Rethinking Truth and Reconciliation Commissions: Lessons from Sierra Leone (Washington, D.C.: United States Institute of Peace, February 2005), 12.
18. Luc Huyse, "Conclusions and Recommendations," in Traditional Justice and Reconciliation after Violent Conflict: Learning from African Experiences, ed. Luc Huyse and Mark Salter (Stockholm: International Institute for Democracy and Electoral Assistance, 2008), 197.
19. Ibid.
20. DFID, Non-State Justice and Security Systems: Briefing Note, 14.
21. Ibid.
22. See, for example, Celestine Nyamu-Musembi, Review of Experience in Engaging with 'Non-State' Justice Systems in East Africa (London: Department for International Development, February 2003).
23. DFID, Non-State Justice and Security Systems: Briefing Note, 12.
24. Huyse, "Conclusions and Recommendations," 197.

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