Case Studies

Case studies provide excellent insight into the practical challenges of SSR initiatives and provide an opportunity to learn from those that have been successful, and not so successful.  They help us to see the patterns of good practice, when to apply different approaches and what pitfalls to avoid.  Please add your own case studies to help us build a rich repository of examples from real experience.

East Timor – Reconciling formal and customary systems through evidence-based programming

Context

Traditional legal practices in East Timor, usually imbued with ancestral religious beliefs, are inherent to a system in which kinship concepts regulate most aspects of everyday life. Conflict resolution and punishment of crimes are part of this. These even kept their relevance throughout Portuguese colonial rule and Indonesian occupation, actually adapting and taking advantage of the formal laws imposed by both external rulers. “These mechanisms have developed in an environment where no state-bodies prevailed, and are paradigmatically contradictory to modern systems of rule of law”, as highlighted by Tanja Hohe and Rod Nixon (see reference below).

Within the complexity and diversity of Timorese legal systems, customary law is characterized by collective restorative justice and social sanction as means for enforcement. It is also a layered system in which a dispute is first reported to the family, then subsequently to the leaders of the village, hamlet, “suco” (group of villages), finally to the elders in the community, and maybe also to the police (albeit this does not mean that the case will follow a formal judicial route of resolution). The pertinence and legitimacy of customary justice implies that, even when justice is done through the formal institutions, the community still needs and demands that the issue be settled through traditional mechanisms. Support to the justice sector in independent East Timor, starting with the United Nations Transitional Administration in 1999, carries the assumption that the extension of statutory justice will gradually replace traditional mechanisms and reconcile its core values with modern concepts and norms.

Entry point

Justice sector development has been central to state-building and peacebuilding in East Timor but, as the Asia Foundation points out, the citizens have seen little benefit “despite many years and tens of millions of dollars spent on reforming the formal system by supporting the physical and human resource infrastructure for formal court actors”. Whilst progress has been made in recent years on strengthening formal justice, the resilience of local systems challenges common assumptions in justice development and questions the validity of rule of law interventions.

The Asia Foundation, a nonprofit international development organisation, has been conducting periodic assessments of end-users’ perceptions of the impartiality, effectiveness and accessibility of the justice system in East Timor, going beyond the understanding of where people go to address their justice concerns.

Surveys were conducted in 2004, 2008, and 2013 by the Asia Foundation with local partners, providing an important snapshot of perceptions held toward formal and informal justice mechanisms, the police, and security in general. The comparison between formal and informal systems was a vital component of the survey.

The results of the surveys pointed to the need to support other actors under justice reform programmes, and contradicted prevailing perceptions about whom ordinary people call on to seek justice. Moreover, the lessons extracted allow for evidence-based programming in a crucial area, fostering sustainability and ownership of interventions aiming at reconciling customary systems with statutory justice.

Lessons identified

The most important lesson from the three perception surveys undertaken by Asia Foundation is that institutions and systems that have little or no relevance to a people’s way of life are unlikely to be adopted in the short term. In this, the data provides strong evidence backing policy and academic literature – above all, from anthropologists – describing how the state-building enterprise in East Timor ignored the pre-existing and functioning local legal order.

The 2013 survey confirmed that, despite significant progress toward strengthening the formal justice system, “a greater proportion of people in contemporary Timor-Leste are more confident and comfortable with local justice systems.” Attitudes towards women’s access to justice, meanwhile, remained significantly worse than in 2004. Ultimately, despite outreach initiatives since 2008 (the year of the last major political-security crisis), Asia Foundation research shows that the people of Timor-Leste continue to have limited knowledge about the justice system and their legal rights. The data indicates also that concerns about best practice, human rights standards, and equitable treatment for all members of society in such a strictly patriarchal and hierarchical system are not yet adequately addressed.

The Asia Foundation strongly recommends stakeholders in justice development to effectively engage with traditional actors and aligning them with existing obligations under the Constitution and international norms, to ensure quality of care and a ‘do no harm’ approach.

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Case Study

Colombia - Coordination between national and indigenous judicial systems

Context

Colombia is home to over 80 indigenous communities, each with their own dialects and judicial authorities. The year of 1991 represents a landmark for them, since it was the year when a new Constitution was established, in which the diversity of cultures was acknowledged, and their protection was referred to. Various other pieces of legislation have followed that further specify the ways in which indigenous populations have had to be increasingly incorporated into the national system. Especially the 1996 Act No. 270 of the Statute of the Administration of Justice, given that it placed the justices of peace and the jurisdiction of the various indigenous communities within the Judicial Administration structure.

Nonetheless, managing the difference between the rules of the national judicial system and those of the indigenous judicial systems has been a challenge in the absence of a law on coordination (also foreseen by the 1991 Constitution). This challenge places indigenous groups in vulnerable circumstances, especially in those cases where the two jurisdictions clash. A law allowing for the coordination of over 80 indigenous groups, considering their unique differences, whilst being sufficiently operative to settle disputes, proved difficult to obtain. Adding to the complexity is the widespread armed conflict that has been part of the country’s history for the past five decades. National security forces often enter territory without indigenous approval, undertaking operations that sometimes bring the conflict dynamics into these communities.

Entry point

The disparities between the different systems of carrying out justice turned collaboration between the national authorities and the indigenous authorities necessary. Building on the various types of legislation in place to promote the respect and protection of the indigenous populations, in 2004 the Higher Council of the Judiciary, in partnership with the National Indigenous Organisation of Colombia, and the Association of the Indigenous Council in the North of Cauca, developed the programme “Support to the Coordination between the Special Indigenous Jurisdiction and the National Judicial System”. The aim was to foster mutual knowledge of the two systems and the new legislation, and to promote coordination, in order to improve the access of indigenous communities to basic justice services. The programme was co-funded by the Inter-American Development Bank and the Higher Council of the Judiciary, with resources having been provided by the Special Japanese fund.

The programme had five main components:

  1. An intercultural educational training that brought together the justice officials of the national system and those of the indigenous system to learn about each other’s modus operandi, including norms and processes, as well as  to identify needs.
  2. The establishment of a system of data collection to document and report on the different decisions of each jurisdictional body, in order to better understand how the other works. Respect for the customs of each community was respected through establishing voluntary participation in the process of contributing data.
  3. Development of a jurisdiction map covering all judicial systems, the competent authorities, and the services offered.
  4. Consultation of the population at the national level, to assess their opinion about the results and successes obtained, and contributing to the identification of the future financial needs of the programme. 
  5. A national workshop with the participation of the Organization of American States (OAS) to present the results and discuss relevant issues concerning the Special Indigenous Jurisdiction.

Finally, an Advisory Committee for the Programme was created as an accountability mechanism that was in charge of overseeing the accuracy and effectiveness of implementation.

Lessons identified

The main lesson from the Colombian process is that coordination can be enabled in practice, even if legal regulations are absent. The programme “Support to the Coordination between the Special Indigenous Jurisdiction and the National Judicial System” was successful in facilitating mutual system knowledge, and in promoting interaction between actors of the formal and of the indigenous justice systems. It also succeeded - through the consultations – in sensitising other relevant stakeholders such as the security forces and the private business sector towards the need to respect both jurisdictions. The transversal intercultural component of the programme contributed to the creation of a culture of jurisdiction collaboration and coordination previously inexistent. An iconic example of this is a sentence by the Constitutional Court – related to the Vencedor Piriri-Guamito y Matanegra Indigenous Reservation – stipulating that prior consultation of the indigenous authorities is mandatory before private extraction companies enter their territory. 

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Case Study

Customary Justice | Zimbabwe – Governance training for traditional leaders

Context

In Zimbabwe, traditional authorities are the custodians of customary law and practice, and represent the crucial interface with the state for most of the population. The social importance of traditional leaders is formally recognised in state law, which empowers chiefs in matters ranging from land disputes to natural resources management and rural family life. The new Zimbabwean Constitution approved in 2013 further reinforces legal pluralism in the country.

In the context of widespread political violence and intimidation in electoral periods in recent years, traditional leaders have been often accused of aligning with and serving the interests of ZANU-PF, in power since Zimbabwe’s independence in 1980. Pervasive tensions and violence at the community level lead one NGO, International Rescue Committee (IRC)/Zimbabwe, to initiate a two-year training programme for traditional leaders to remind them of their responsibilities under the law, and the basic standards of professionalism. The project was called Supporting Traditional Leaders and Local Structures to Mitigate Community-level Conflict in Zimbabwe. It was conducted for a period of 24 months between 2012 and 2014, with funding from USAID and carried out in conjunction with the Legal Resources Foundation (LRF).

Entry point

Traditional leaders are strategic agents of change in their communities.  Given the allegations against some traditional leaders, the IRC/LRF project sought to address critical knowledge gaps through a capacity building initiative. The project targeted all leaders at all levels of the traditional chieftaincy system (chiefs, headmen, and village heads) in two rural districts, Mutare and Mutasa, in Manicaland province. Its main objectives were “to prevent violence and to promote positive relationships at the community level, by strengthening traditional leaders’ capacity to perform their role effectively, to make sound decisions, and to resolve conflicts peacefully”.

The activities involved two 3-day training sessions with groups of villages, conducted about three months apart. IRC ran five programs: two groups with village heads only; the other three including community leaders. The sessions were divided into the following six modules: the local government structure in Zimbabwe, leadership and communication, conflict resolution and management, gender and traditional leadership, the district assembly and local leadership and natural resource management. Modules were delivered through lectures, role plays and group discussions.

Lessons identified

The evaluation study, carried out by USAID, focused on two questions: is there a correlation between training and improvements in governance? And are there gains or losses in social peace within the community? The underlying issue is how effective are operations that aim at regulating traditional institutions, as many governments try to do?

Results showed a tangible difference between villages where only the leaders received the training, and villages where other community leaders were part of the trainees. The latter (broader training) was more effective in changing traditional governance in two ways. First, it created an individual within the village who could act as a check on the power of the village head. Second, the community leader was able to inform a larger number of community members of the legal framework governing traditional leaders.

As highlighted by the evaluation study, the main points emphasized by the village heads where extended training was given was that the community leader helped “remind” them of the law, thereby checking their powers, and the community leader effectively disseminated information on the legal framework, especially to groups – such as youth -- over which the village head had limited influence. At the same time, the limits of such activities were also documented on which behavioural measures suggest that traditional leaders didn’t become more consultative or deeply committed to inclusive governance. They “may have become savvier about surrounding themselves with people of similar views, choosing family members and people who do not express critical views to attend meetings.”

The study indicated two things. First, regulation efforts depend on how the regulation is structured; training sessions for village heads by themselves are likely to have little impact, but they have greater impact when other community leaders are involved, since “horizontal pressure” from these and other citizens after the training sessions is necessary for traditional governance to change. In other words, efforts to build the capacity of traditional leaders should also include mechanisms to strengthen accountability. Second, changes in the procedures of traditional institutions may increase inter-group conflict and reduce social trust in communities. Put simply, there may be trade-offs between fostering consultation and maintaining social cohesion.

The study also cautions against a narrow consideration of impact in capacity building projects. Gains in governance transparency imply as well a broader awareness of social tensions and differences in opinions amongst citizens. A careful consideration of power relations within the community, and the potential changes or challenges introduced by capacity building, is needed to avoid creating or exacerbating conflicts. Traditional institutions might become more respectful of good governance, transparency, and consultation, but the inherent policy changes will inevitably create winners and losers in the community.

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Case Study

Bangladesh – Shalish

Context

Although the entire Bangladeshi population holds the right to access justice systems, there is a big gap between theory and practice due to costs, backlogs, and a lack of resources and knowledge by the people seeking out these services. More often than not, even in the case of simple claims, they can get delayed due to formalities and administrative complications. Furthermore, given that formal judicial systems are normally located in urban areas, it is difficult for the majority of the population to have physical access to them given that eight in ten Bangladeshis reside in villages.

Therefore, most of the population turns to informal mechanisms, such as the shalish. Through these sessions disputants can solve their problems quicker, with few to none costs, and in a way where they are able to express themselves freely given their informal nature. Also, by creating a space in which local disputes can be addressed, the shalish system is effective in preventing the escalation of violence of these issues.

Entry point

Shalish sessions consist of influential and well-respected leaders in the community who come together to settle disputes and listen to the actors involved, as well as their families. This community-based mechanism can be invoked to deliberate on a multitude of civil matters, but most commonly on issues about family and gender, such as violence against women, inheritance or divorce, and land ownership. Given that each case is unique and the gravity of the problems addressed varies, there is no set structure or defined size or timing for these gatherings. Also, although the main purpose of the panels is mediation or arbitration, in its most severe form they can assert punishment over individuals which have not agreed to its jurisdiction.

There are three types of shalish sessions(although it is important to note that these often overlap in practice):

  • Traditional shalish – involve the gathering of male village elders and concerned actors to settle community disputes. Even though some of the deliberations are not fair and equitable, they hold significant value because they come from well-known and respected individuals in the community. However, given that they are run only by high-level males, women are susceptible to receive harsh punishments through the issuance of fatwas, or legal rulings issued by recognised religious authorities of Islam. Corruption is common as a way to maintain the spheres of influence over these judiciary systems and perpetuate cultural norms and biases.
  • Government-facilitated shalish – include the participation of the Union Parishad (UP, which is the lowest level of local elected government) as chairs and members leading the sessions and considering the laws meant to regulate the punishments delivered. However, it is widely reported that the structure and dynamics of this kind of shalish are highly similar to the traditional form in the way that local patronage systems affect the decision-making processes, and the rights of women and vulnerable groups are largely ignored. Nevertheless, there is a growing trend in the inclusion of women in UPs.
  • NGO-facilitated shalish – provide gender and social justice training and education to shalish and community members, as well as support the organisation of sessions and introduce record-keeping techniques. The Madaripur Legal Aid Association (MLAA) has been the most significant actor in promoting this framework and advocating for the modification of gender and class biases in these processes, and has also trained various other NGOs in the matter.

Lessons identified

The participation of NGOs in these judiciary systems has proven effective in mitigating corruption and gender and class biases, and to have a positive impact on the performance of these systems. Leaders now feel discouraged from extorting the disputants in order to rule in their favour, and the documentation of all sessions strengthens enforcement mechanisms. Also, if faced with major criminal cases in which the leaders of the shalish are personally involved in, NGOs have been able to intervene and bring in the necessary state judicial forces (e.g. lawyers, police, prosecutors and judges) to make the matter more equitable. Moreover, they encourage the participation of women and disadvantaged communities, whether as shalish panellists or as disputants during sessions.

Furthermore, by providing education to the community about their rights, abuses by members of high-levels of society are avoided. An example of this can be illustrated by the rights of divorced couples. Often times religious leaders would profess that the only way a woman could remarry would be by having sexual relations with another man other than the husband, which would be suggested to be the religious leaders themselves. Due to a combination of all these elements, NGOs are having a positive influence on the gradual sustainability on the improvement of shalish sessions.

Impact

Although they can perpetuate poverty and the powerlessness of women and vulnerable groups if executed ineffectively or infiltrated by corruption, shalish sessions do provide communities with free access to justice. Also, given that they are carried out in an informal and familiar manner with the presence of multiple people in society, people are able to express themselves freely because it adds an element of comfort in community members. Settling these disputes locally also has strengthened community solidarity where practiced. Lastly, since the leaders of these sessions are well-respected, they are members of the community and there is participation from all the parties involved in each particular case, the decisions hold more value because people are seen as more accountable by their peers than the formal justice system.

Selected Resources

Case Study

The Philippines: The “Bantay Bayanihan” Forum

Building on a decade of capacity building training programmes and joint programming for the military and civil society in the Philippines, a new initiative creates a permanent forum for civil society-military-police coordination and civil society oversight of the security sector. Launched in 2011, the Bantay Bayanihan forum institutionalized the goodwill that began with the 2010 formulation of the Internal Peace and Security Plan (IPSP) that included strong participation from civil society groups.

Bantay Bayanihan, known as the “BB,” engages the security sector in critical and constructive collaboration towards peace and security sector reform. The network serves as an independent oversight body in the implementation of the Armed Forces of the Philippines’ Internal Peace and Security Plan. It provides dialogue spaces for various stakeholders to come together and work towards addressing peace and security issues at the local and national levels.

Phil1

The BB is a “Whole of Nation Approach” involving many diverse stakeholders. But the BB is also localized, enabling the general public at the local level to communicate directly with local security forces and local government. The map here highlights the locations of BB platforms across the Philippines. The network has grown to 15 clusters with a nationwide reach. It includes 150 civil society organizations – including human rights, religious, environmental, academic, and labour groups - together with civilian government units, leaders from the Department of National Defence, Department of Interior and Local Government, Philippine National Police, Armed Forces of the Philippines, National Security Council, and the Cabinet Cluster on Justice, Peace, and Security also participate in BB events and meetings. The BB’s National Secretariat is the Security Reform Initiative (SRI).

According to the BB’s website, [1] “The universal message of Bantay Bayanihan is about working together towards winning the peace. By sharing the gains and duties of laying the groundwork for conflict resolution and community development, it creates a space for conflict survivors to be empowered in creating their future. At the same time, it brings government closer to its constituents, offering a human perspective of security issues rather than its traditional institutional stance.” BB aims for dialogue partners to jointly implement the IPSP to ensure and advance human rights, international humanitarian law, rule of law, accountability, civilian engagement and democratization of the armed forces. Specifically, BB includes the following tasks:

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• Serving as a venue or direct channel to raise issues regarding the IPSP-Bayanihan, including peace and security concerns of local communities

• Conducting and validating periodic evaluations of IPSP-Bayanihan

• Providing recommendations to the Chief of Staff (national level) and Commanding General (unified command/ division/ brigade level) on IPSP-Bayanihan

• Generating concise policy recommendations on security reforms together with peace and conflict dynamics, to be submitted and presented to respective peace and order councils (local executive) and sanggunian (local legislative), all the way to national-level Cabinet security cluster (executive) and Congress (legislative)

• Promoting Bantay Bayanihan to other potential partner stakeholders

• Institutionalizing the active partnership of government and civil society

In addition to smaller meetings where civil society representatives meet with security sector leaders, the BB also holds public forums to broaden discussion about Peace and Order Councils, Normalization, and CAFGUs (Citizen Auxiliary Force Geographical Units). Bantay Bayanihan also produces policy reform papers to reflect the views of both civil society and relevant government agencies.

The BB emerges from decades of tense relationships between communities and security forces. At first, civil society suggested that they call the BB a “multisectoral advisory committee.” Then the name shifted to the “Bayanihan Partners Forum” but some parts of civil society objecting, noting it was too early to call each other “partners.” Some military officers were unsure about allowing civil society representatives to hear intelligence reports, such as the details of operations, from casualties to how many shells were fired. A civil society member shared that with the IPSP approach guiding the military’s activities, there was a significant change in dealing with such cases: “Military now plays a vital role as protector of the civilians. This lessened human rights violations because the military has learned that they have to connect with the community. Before, they were hard to get or they were very sensitive and defensive especially when we brought cases of rape [against soldiers] to the [meeting] sessions.” Trust continues to grow, as security forces recognize the value of hearing civil society’s different perspectives and analysis on security threats.

In the region of Lanao del Norte, the BB’s work building civil society collaboration outreach from a small, interfaith NGO known as Pakigdait with the Filipino military. Pakigdait conducts interfaith dialogue between Muslim and Christian leaders and aims to help communities address conflict and bring needed changes without violence. Like most of his community, Musa Sanguila of Pakigdait had experienced abuse from military personnel. Growing up as an ethnic Moro, he had been rounded up by the military police and from that experience of repression and humiliation he became a Moro activist. In August 2008 the army blocked all food supplies to the local municipality. Pakigait requested for passage to bring in relief goods. The army refused for fear that they are also providing for the insurgents. But now, because of the BB dialogue, trust between civil society and the military is increasing because of the BB engagement.

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His colleague Abel Jose Moya was captured and tortured in the 1980s for his role in the New People’s Army. Sanguila and Moya had a change of heart. With a desire to promote a “culture of peace,” Sanguila and his colleagues began regularly visiting military camps to teach soldiers how to speak the local Maranao language and to relate better to local communities. The AFP twice awarded Pakigdait as an “outstanding NGO” for its bridge building work between civil society and the military. [2] Now Musa Sanguila sits on the BB oversight committee. Sanguila observed that “Everyone is wounded” in both civil society and in security forces. Speaking as a representative of civil society, Sanguila states “It is important we talk to each other. We always tell them that we are here not to criticise but to be constructive on how we can push for peace and development together. We are here to help.”

Excerpt from the book Local Ownership in Security: Case Studies of Peacebuilding Approaches edited by Lisa Schirch with Deborah Mancini-Griffoli and published by The Alliance for Peacebuilding, The Global Partnership for the Prevention of Armed Conflict, and the Kroc Institute for International Peace Studies at the University of Notre Dame.

Footnotes

[1] See http://www.bantaybayanihan.org. Accessed 30 October 2015.
[2] See Ariffin-Cabo. June 2008.

Case Study