The Multilayered Approach: Pitfalls and Lessons

by Jean-Philippe Kot · July 9th, 2021.

There has been significant progress in understanding that SSR programs must take a multi-layered approach’ based on the insight that the State often lacks the capacity of being the sole provider of justice and security. Acknowledging that post-conflict states may have capacity deficits or may not be viewed as legitimate, the OECD recognizes that “the design of justice and security development indeed requires a multilayered approach that provides assistance to a range of legitimate state and non-state providers at the multiple points at which actual day-to-day service delivery occurs”[1].

The multilayered approach is not a strategy of abandoning support for the state providers altogether though. While the importance of non-state actors is acknowledged, the conceptual principle of state building continues to dominate. The OECD “enhancing the delivery of Justice and Security” report warns in this regard that whatever support is provided to non-state systems must be balanced by the establishment of mechanisms to link them to State systems. Similarly, the Handbook on Security System Reform is preoccupied with the capacity of state institutions.  In this sense, the multi layered approach “ is not a matter of recognizing, working and supporting a hybrid order, it is a plea to accept and work with the local order that exists until such a time when the state can take over”[2]. In the World Bank words, it is only when “the conditions do not favor empowerment of formal legal institutions” that “ reformists can look to a broader set of formal and informal institutions that may be relevant in terms of meeting the key functions of commitment, coordination, and cooperation for particular issues”[3].

As such, the multi-layered approach contributes to reduce the perspective on customary justice to a simple binary alternative: do customary Justice and Security providers substitute for the state exercise of sovereign powers  or do they help strengthen the state’s authority by extending its writ? Yet, such alternative is artificial. The literature does show that customary institutions and formal state institutions do not substitute for each other and do not always compete. These two sets of institutions –formal and informal –can share a range of relationships and engage in a number of ways, and this does not need to emanate from the weakness of the state[4]. If the state is perceived as legitimate, then all of the leaders in it – even traditional leaders who may have a limited or purely informal role – are also perceived as more legitimate, and states likewise benefit from the legitimacy of traditional leaders[5].

As a consequence of this approach, customary Justice systems are seen as secondary to formal institutions and perform a practical, temporary role until the formal justice system is fully functional. In many situations though it could be argued that engagement with justice systems outside the state is not merely an interim strategy for developing countries until such time as customary systems can be “modernized” and fully integrated into the state. Customary justice is not a sort of sub-specialty on the margins of the “real justice system”, nor is it necessarily a symptom of the state’s dysfunctionality. Large scale study conducted by Afrobarometer[6] found no significant association between support for expanding the influence of traditional leaders and the substantive performance of either local or central governments-  even though a very modest negative relationship between the procedural performance of local governments and support for traditional leaders exists. Besides, the development of non-adversarial dispute resolution systems outside the courts is a permanent and necessary element of a functioning justice system, regardless of level of development. The evolution of justice in the developed world is unequivocally in the direction of compulsory mediation, restorative and diversionary justice, alternative sentencing and community-led processes.

In turn, this approach artificially restricts the entry points for a justice reform intervention by promoting  an institutional conception of human rights, whose full realization is seen as a trickle-down effect of enhanced justice systems rather than encouraging a shift towards a focus on the users of justice systems. Engagement is still underpinned by state-centrism; nonstate institutions are to be harmonized or embedded organizationally (through laws and structural reforms) and normatively (through the transmission and enforcement of human rights norms) into the state system. In  this perspective, the strategies that aim to directly address flaws or constraints inherent in customary justice systems tend to overlook or contradict some of the fundamental tenets of customary justice that underpin its legitimacy or internal coherence  and make such systems workable and responsive to user needs and expectations. The sole focus on eliminating the negative practice tend to analyse customary systems’ dynamism and flexibility as an entry point for discrimination and abuse while such fluidity also makes customary systems capable of modernization and change, thus opening up inroads for progressive reforms.

It is important to avoid short-term reforms that risk damaging functioning systems, weaken or corrupt their internal integrity of the CIJ system, whose effectiveness depends on its social power to command user participation and respect without ensuring that an improved and sustainable mechanism is available. Ill-conceived attempts to integrate informal institutions with the formal state apparatus may also create ambiguities about their roles and functions[7]. Programmatic interventions may adopt a ‘long game’ approach: to develop an enabling framework over the long term through incremental change rather than suppressing  a practice that is attached to a widely held belief set where a risk to drive the norm underground, where less regulation leaves marginalized groups even more vulnerable to exploitation and unsatisfactory outcomes exists. Such approach is not to suggest that programmers should turn a blind eye to legal practices that are overtly discriminatory or that breach human rights, but simply that universal standards should be translated into achievable goals, draw out positive norms with the customary system. For instance, “in Somalia, the customary law containing basic behavioral prescriptions (Xeerdhagan) includes protections for women, children, the elderly and guests. In Afghanistan, Pashtunwali custom includes requirements for chivalry, hospitality and personal integrity. Such norms can be advanced to enhance the protection of women and marginalized populations. It may also be possible to draw on other sources of social influence to prevent harmful practices, such as religious scholarship. Women’s groups in Somalia have condemned female genital mutilation and patriarchal inheritance practices as violations of Islamic law. Also in Somalia, elders were empowered to improve the customary system of Xeer and committed to refer serious criminal acts to formal justice institutions. In doing so, these community leaders were successful in “breaking the cycle of impunity inherent in the functioning of Xeer and group compensation mechanisms” which had undermined the protection of vulnerable groups[8]

[1] OECD Handbook on Security System Reform, 2007, pp. 67-68.

[2] Peter Albrecht, Hybridation, Intervention and Authority, Routledge 2019

[3] World Bank- World Development Report 2017

[4] Getchen Helmke, Steven Levitsky, Informal Institutions and Democracy, lessons form Latin America, John Hopkins University Press, 2006

[5] Carolyn Logan, The Roots of Resilience: Exploring Popular Support for African Traditional Authorities, Afrobarometer Working Paper 128, p.17.

[6] Carolyn Logan, The Roots of Resilience: Exploring Popular Support for African Traditional Authorities, Afrobarometer Working Paper 128, p.17

[7] See Shandana Khan Mohmand, Customary institutions and public authority: A literature review and the examples in Burundi and Tanzania.

[8] IDLO, Practitioner Brief Navigating Complex Pathways to Justice: Engagement with Customary and Informal Justice Systems, p. 26.

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