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Donors’ approach to Traditional Justice often results in a dilemma between the imperative to urgently provide basic services to the population, and the imperative to prioritise state-building. Support to non-state services providers is often seen as an alternative to supporting governments’ engagement in service management, when the state capacity to provide those services is weak.
Data collected during the ISSAT Lesson identification Mission on the Work of UNMIL Rule of Law pillar carried out in December 2017 provide a more nuanced picture and highlight the need to adopt an integrated approach to informal dispute resolutions mechanisms linking conflict resolution to conflict prevention, rather than seeing them as fundamentally separate approaches. Informal dispute resolution mechanisms are an integral part of the justice process, rather than an alternative to it. As such, many of the lessons that have been learned about justice-sector programming can and should be applied, including the need to holistically combine various forms of interventions.
Every study conducted in Liberia, including the one by ISSAT, points out to the evident willingness of most conflict parties to have their disputes solved at the lowest level possible. Formal mechanisms would still not be the forum of choice for many rural Liberians even if it were able to deliver affordable, timely, and impartial results. As such, informal Justice mechanism represent the most evident avenue to free up the ability of formal courts to take on more serious cases, by resolving minor ones in other forums. In Liberia, the continuum between traditional and formal justice is particularly evident given that the customary system has a built-in appeal system whereby the judiciary acts as a last arbiter of disputes when a conflict party is not satisfied with the ruling of the traditional court or community authorities.
I hope it helps,
In examining ‘Traditional Justice’ and ‘Non-Formal ‘Dispute Resolution’ methods in practise, a number of influential examples can be found in the South East Asia/Pacific Region.
Pacific countries are heavily affected by disputes over land, and land disputes are a primary ‘conflict driver’ often leading to serious instances of violence and civil unrest. Disputes over land ownership have become increasingly complex due to migration, displacement or economic development.
Whilst living and working within Timor-Leste, I observed two programmes which looked to build and enhance existing customary ‘mediation’ and village-level ‘dispute resolution’ processes, following the fundamental principle of SSR, Local Ownership.
In particular, a land dispute ‘Mediation Model’ introduced by the United Nations Interim Administration in Timor-Leste, found success as it sought to enhance, (and not replace) traditional village-based resolution practices which still account for the majority of Justice interactions that the general population of Timor-Leste are able to access.
Another likely reason for the success of this model was the ability for mediation to blend with the formal justice system, due to the introduction of relevant laws and policy, underpinned by proper community consultation, training, and monitoring of the various actors within the justice chain.
Two stand-out features of this intervention were:
- Interim no-violence agreements that are sealed by existing tribal/village rituals, and witnessed by traditional, government and church representatives.
- Mediation is embedded in land administration, and not the (heavily backlogged) judicial administration. This allows for agreed remedies (not available in the courts which usually produce win/lose outcomes) to be used, including ‘sharing’ or ‘swapping’ of land, which provides addition avenues for resolving conflict and preventing violence.
Even matters that are brought before mediation, which result in neither party finding agreement can be seen as examples of success, as the mediation process and initial agreements to engage in dialogue, prevent violence, and foster cultural/traditional (Therefore influential) motivation to avoid conflict.
For an overview of the program, including four case studies of this program in action, go to: https://dfat.gov.au/about-us/publications/Documents/MLW_VolumeTwo_CaseStudy_9.pdf
In 2008-2009, a subsequent GtZ (Now GiZ) programme later further enhanced traditional justice by building more than 70 mediation centres throughout Timor-Leste, training mediators (from memory more than 500 were trained), and drafting additional legal frameworks (The Mediation Bill) to allow mediation to support/supplement formal justice processes. The ‘jury is out’ on the success of this follow-up initiative, as a change in government and issues over local support have heavily affected implementation and sustainability.
For those who are passionate about Traditional Justice and the important role that this plays in many countries in which the international development community are working, I highly recommend reading: Promoting the Rule of Law in Post-Conflict States by Laura Grenfell.
Considering "traditional justice" is at the heart of any national ownership in respect to justice. As the international community, we often tend to impose models and solutions stemming from our own judicial environment. However, in most societies, justice systems are already in place and work for several decades/centuries sometimes pretty effectively. The question at stake is therefore not so much a question of structure or model but more a question of values that are underpinning the current system.
Imposing a model from another society might be sometimes very challenging. IN Central African Republic (CAR), the training and deployment of judges in the country faced in some places tough resistance from populations, often manipulated by traditional leaders (ethnical chiefs) in charge of the justice in certain areas. In the context of a mapping of the justice system, we should therefore not consider that nothing is in place. On the contrary, we need to carry out an in depth identification what is already in place to address any issues such a cattle thieves, or dispute over land distribution or hunting areas. These traditional structures might not be always very visible for an external investigator. It becomes therefore critical to get the right level of support provided by relevant ethnologists for instance, helping to unfold the social fabrics and to understand the reality of the traditional justice in place.
Once there is a clear understanding, the point of discussion focuses on the value underpinning the identified system. In CAR and in many countries n Africa, traditional Justice does not always consider any respect of human rights. In a population often under educated, considerations around gender are not extent and women are usually disproportionally punished. Witchcraft is spread everywhere and needs to be specifically addressed.
In this context patience is a key attitude. In the area of traditional justice so interlinked with the reality of the social fabrics, changing behaviours requires a long, enduring and sometimes frustrating engagement.
Dear JP, many thanks for pointing out to the dilemma and the integrated approach followed by the UNMIL Lessons Learned mandate. What could be the potential disadvantages of working with traditional justice providers, based on your experience?
Adam, thanks for the detailed case study on Timor Leste on land disputes, I will examine the lessons learned and feed into our thinking.
Herve, many thanks for your remark on the need for in depth analysis of the particular context and value systems, and highlighting the need for patience based on your experience in CAR.
Other case studies have recently been highlighted by IDLO within their consultation process, which might you might find useful.
How about security, it would be great if we could have CoP members share good practices/resources in working with traditional/non-state security providers?
The work that we have done in July 2018 on the Local Security Initiatives (LSI) in Burkina Faso as part of the EU SSF Facility, of which DCAF is a consortium partner, provide lessons on this theme, especially on non-state security providers. In Burkina Faso, designing a context-specific approach to LSI supervision has become a critical issue that is closely linked to the on-going national SSR process. It relates to the link between the State and the population, the rule of law, good governance and the control of the local dynamics of tensions.
Since 2016, LSI like the Koglweogo groups have flourished in regions of Burkina Faso not properly covered by Police and Gendarme forces. They initially gained some degree of legitimacy in the eyes of the local populations and it has become quickly impossible for the State either to disband them nor to ignore them. At the October 2017 Security Forum in Burkina Faso, the State recognised the effectiveness of LSI’s interventions in improving general security in certain regions despite instances of abuses of power and human rights violations. The literature on vigilante groups in sub-Saharan Africa helps to identify mid-term risks of such groups without supervision as:
- The militarisation of organizations and the professionalisation of their members;
- The politicization and communitarisation of the objectives pursued;
- The connection with serious crime;
- The spread of regional security instability and violent extremism.
Therefore, at the time of our mission in Burkina Faso, the question was how to shape an acceptable situation in which State-institutions and LSI are not on a collision course while the population is better secured. The answer suggested a way to develop a framework providing a role and a clear set of missions for these groups that complement those of the Police and the Gendarmerie. This framework would established a set of red lines not to cross and a system of supervision by the national and local public authorities to mitigate the above risks. Such process needed to be consultative and to involve traditional and customary chiefs.
Examining the Burkinabè case presents us with the following lessons : Legal and institutional framework could be reviewed with a participatory approach. The distribution of operational responsibilities of LSI by geographical area should be implemented. This dynamic should be further elaborated within a national framework based on the model of proximity policing and the concept of human security but applied at the regional level. Good community safety practices should be identified and promoted.
And last but not least, there should be a link with the development approach. The Burkinabè context requires prioritising security among other national emergencies. The dynamic to be implemented is to take into account not only the security challenges expressed during the national forum but also to clarify the link with the root causes of "fragility" of Burkina Faso. This will provide national and international development actors with programmatic entry points to support LSI coaching. This perspective also offers areas of action for LSI, with their support role towards development.
As the national process of SSR in Burkina Faso is ongoing and violent extremism is quickly spreading out in new areas of the national territory, it is important to watch closely how these recommendations and lessons from previous examples are going to be implemented in practice in a situation where emergency responses to terrorism and longer term responses to fragility must be simultaneously provided.