Recognise the centrality of customary and religious justice systems in JSSR programming
In developing and fragile societies, the state does not hold the monopoly of justice provision, and in fact, most disputes are settled through non-state mechanisms. These include customary or traditional justice providers as well as religious authorities, which should therefore, be considered and worked with during the programming and implementation of justice reform.
Mitigate the tensions between customary rules and international human rights standards by focusing on particular thematic entry-points
International human rights standards derive from a liberal tradition focused on the individual, which is not always compatible with the underlying values that characterise collective oriented customary and religious justice systems. The contradictions are oftentimes overwhelming; hence a better strategy to address them is to focus on particular topics such as gender, proportional sentencing or any other context relevant issue (see case study on Guinea-Bissau).
Map the different legal orders coexisting in a given context for relevant JSSR programming
Recognition can take the form of full legal autonomy and special jurisdiction, where customary laws are exempted from constitutional guarantees related for instance to gender equality (as in Zimbabwe, Kenya, Lesotho and Sierra Leone). In many contexts, it is difficult to translate state formal recognition into regulation and implementation (the case of Australian Aboriginal customary laws or systems illustrates such challenge). Whilst recognition of legal pluralism can foster access to justice by marginalised groups, it can also serve political strategies to expand or consolidate state power (as in Mozambique and Zimbabwe, for instance). Legal pluralism can also derive from the recognition of religious laws. For instance, in many Muslim majority countries with secular government Muslims can choose sharia law for familial and financial disputes (as in Nigeria and Kenya). Several countries have mixed jurisdiction courts where colonial legal heritage is complemented with sharia law (like Indonesia). In addition, multiple customary traditions of community conflict resolution can exist in the same country, with variations between regions and different ethnic groups (see case-study on Guinea Bissau). Looking carefully at the specificities is essential to find adequate entry-points for programming, especially when vowing to promote harmonisation between the different systems (see case-study on Colombia).
More often than not different legal traditions coexist under different models for state and customary law interface. Whilst these interactions are always context-specific, complex and somehow transient, from the perspective of the state they fall broadly under one of these categories:
- Recognition usually accompanied by some form of conditionality, e.g. conformity with fundamental rights and constitutional provisions (like in South Africa, Namibia, and Indonesia);
- Incorporation, where statutory courts can adjudicate cases on the basis of customary law (as in Uganda, Malawi, and Nigeria); or
- Decentralisation, where customary courts are granted statutory authority, usually as the first judicial instance (as in Botswana).
Including locally embedded CSOs and non-traditional community leaders into programmes addressing customary and religious justice provision offers a framework for improved accountability
Programmes aimed at improving the quality of customary and religious justice provision, whether entailing capacity-building activities or not, tend to result better if they focus on a multi-stakeholder constituency, rather than just on the traditional or religious leaders alone. The empowerment of all actors through participation and gathering of similar knowledge in the process, allows actors such as NGOs, community leaders and even citizens to denounce malpractice of traditional and religious leaders, acting as a layer of deterrence and accountability (see case-studies on Bangladesh and Zimbabwe).
Programming on non-state justice and security systems should recognise their limitations
Customary and religious justice mechanisms can be insufficient to deal with increasing challenges deriving from socio-economic and political changes. For example they can play a meaningful role in preventing the escalation of political violence ahead of elections, but this will be insufficient, if lacking complementary presence and action from state security (in particular the police) and justice institutions (legislation and enforcement of rulings in case of unlawful practices). Other examples where the limitations of customary and religious justice can be observed is when conflicts emerge between two different communities/ethnic groups, or when the conflict opposes the state and the communities, or even when this takes place between the latter and private business interests. This highlights the importance of supporting as well the formal justice system, given that both need to work complementarily in a plethora of areas that go beyond criminal justice issues (see case study on Colombia).