LEGAL AND GOVERNANCE REFORM:

LESSONS LEARNED . No. 3 /2011

Customary Justice:
Perspectives on Legal Empowerment
Janine Ubink, Editor
Thomas McInerney, Series Editor
 Customary Justice:
Perspectives on Legal Empowerment

Janine Ubink, Editor

Thomas McInerney, Series Editor
Customary Justice: Perspectives on Legal Empowerment
Copyright © International Development Law Organization 2011

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Table of contents

Foreword by Thomas F. McInerney 5

CHAPTER 1: Towards Customary Legal Empowerment: An Introduction

Janine Ubink, Benjamin van Rooij 7

CHAPTER 2: Engaging with Customary Justice Systems

Erica Harper 29

CHAPTER 3: Customary Legal Empowerment: Towards a More Critical Approach

Ross Clarke 43

CHAPTER 4: Reducing Injustice? A Grounded Approach to Strengthening

Hybrid Justice Systems: Lessons from Indonesia
Samuel Clark and Matthew Stephens 67

CHAPTER 5: Policy Proposals for Justice Reform in Liberia: Opportunities

under the Current Legal Framework to Expand Access to Justice
Amanda C. Rawls 91

CHAPTER 6: Ensuring Access to Justice through Community Courts in Eritrea

Senai W. Andemariam 113

CHAPTER 7: Stating the Customary: An Innovative Approach

to the Locally Legitimate Recording of Customary Law in Namibia
Janine Ubink 131

CHAPTER 8: Interaction between Customary Legal Systems and the

Formal Legal System of Peru
Ellen Desmet 151
3
CHAPTER 9: Negotiating Land Tenure: Women, Men and the Transformation
of Land Tenure in Solomon Islands
Rebecca Monson 169
Message from the Director of Research, Policy & Strategic
Initiatives, IDLO

Rule of law practitioners from around the world are keenly aware that customary justice systems are
a potentially important means of improving access to justice. Whether by choice or because they
have no alternative options, the world’s poor overwhelmingly favor customary justice systems over
their formal counterparts. While the quality and equity of the outcomes delivered may vary, the
sheer volume of outcomes suggests that there is significant opportunity to enhance legal
empowerment by improving the quality of the justice processes that disadvantaged individuals and
communities already use. At the same time, it is clear that customary justice systems can also
restrict access to justice, particularly for marginalized and vulnerable groups. These processes can
reinforce power imbalances, and outcomes can contravene human rights and justice standards. A
central conundrum of engaging with customary justice systems is therefore how to support their
many important positive aspects and enhance their capacity to protect the human rights of the
most vulnerable members of society, notably women, minorities, indigenous peoples, disabled
people and children. Despite these obvious linkages, the question of the role that customary justice
systems should play in rule of law development programming remains poorly understood. In
particular, there is scant knowledge on the extent to which assistance has translated into behavioral
change among actors involved or on methodologies for evaluating impact and drawing lessons for
future activities.

This volume stems out of a broad IDLO research program featuring activities in Namibia, Rwanda,
Somalia, Tanzania, Mozambique, Papua New Guinea, Liberia and Uganda, aimed at expanding the
knowledge base regarding the relationship between the operation of customary justice systems on
the one hand and the legal empowerment of poor and marginalized populations on the other. The
volume, featuring articles by leading authors, country specialists and practitioners working in the
areas of traditional justice and legal empowerment, discusses key aspects of traditional justice, such
as for example the rise of customary law in justice sector reform, the effectiveness of hybrid justice
systems, access to justice through community courts, customary law and land tenure, land rights
and nature conservation, and the analysis of policy proposals for justice reforms based on
traditional justice. Discussions are informed by case studies in a number of countries, including
Liberia, Eritrea, the Solomon Islands, Indonesia and the Peruvian Amazon.
5
I wish to express my gratitude to Janine Ubink and to all the contributing authors who have made
this volume possible. A special thank you goes to the IDLO staff who has worked very hard on this
project over the past year, including Ilaria Bottigliero (Senior Researcher), Francesca Pispisa
(Communications Officer) and Georgina Penman (Editing Consultant).

Thomas F. McInerney
International Development Law Organization
 Chapter 1
CHAPTER 1
Towards Customary Legal Empowerment:
An Introduction
1
Janine Ubink, Benjamin van Rooij*

n the last few decades, tradition, or at least what has always been portrayed as such, has proven

I resilient, and in many countries, customary justice systems1 have returned to the fore. Africa is a
prime example of where chiefs and customary justice systems continue to dominate or made a
comeback in the last decades.2 Also, in many Asian and Latin American countries, customary
justice systems are vital. See for instance the role of adat in Indonesia;3 the Lok Adalat tribunals in
India;4 and the disputes over recognition of customary indigenous group rights in Bolivia or
Columbia.5 Customary justice systems even play a role in Northern America and Australia, where
there have been intense struggles surrounding the recognition of ‘native’ group rights.6

Over the last decade or more, customary justice systems have become an increasing priority for
international organizations working in legal development cooperation.7 Examples include support
for the re-constitution of Gacaca courts to deal with the immense number of suspects of the
Rwandan genocide,8 and projects aimed at bridging customary and state tenure systems to try to
capitalize on customary land resources following the influential work of Peruvian economist
Hernando de Soto.9 Other examples are development projects that seek to improve the position of
women in customary settings, for instance, through changes in national legislation governing
customary law, legal awareness training, or local level civil society engagement by paralegals.10 How
can this interest to engage with customary justice systems be explained?

Traditionally, donor-led legal reform projects have emphasized formal institutions, such as the
judiciary, legislators, the police and prisons, and paid less attention to customary justice systems.
The prominence of customary justice systems has often been regarded as incompatible with the
modern nation-state and therefore as something to be discouraged or ignored rather than

* Dr Janine Ubink is a Senior Lecturer and Africa coordinator at the Van Vollenhoven Institute for Law, Governance and
Development, Faculty of Law, Leiden University. She holds a Bachelor of Law together with a Master of international Law
from Leiden University, the Netherlands. In 2008, she published her PhD thesis entitled ‘In the Land of the Chiefs: 7
Customary Law, Land Conflicts, and the Role of the State in Peri-Urban Ghana’. Since 2006, she has been involved as
researcher, project coordinator, and editor, in a research project on legalization of informal land tenure in nine countries in
Africa, Asia and Latin-America. Ms Ubink’s areas of specialization include customary law; traditional leadership; land
tenure; legal reform; and legal empowerment. From 2010 she has held the position of a Hauser Global Faculty Professor
at New York University, School of Law. She can be reached at [email protected].
Benjamin van Rooij is a Professor of Law at Amsterdam Law School, Amsterdam University. He is also director of the
Netherlands China Law Center. Prior he has worked as a senior lecturer at Leiden University, where he studied law and
Chinese language and cultures, and did a PhD (2006, cum laude) on the implementation of environmental and land law in
Southwest China. His current research focuses both broadly on law and development and legal empowerment, and more
specifically on implementation of regulation. His most recent publications include B. Van Rooij and C. Wing Hung-Lo, ‘A
Fragile Convergence, Understanding Variation in the Enforcement of China’s Industrial Pollution Law’ (2010) 32(1) Law &
Policy 14-37; B. Van Rooij, ‘Greening Industry without Enforcement? An Assessment of the World Bank’s Pollution
Regulation Model for Developing Countries’ (2010) 32(1) Law & Policy 127-52; B. Van Rooij, ‘The People Vs. Pollution:
Understanding Citizen Action against Pollution in China’ (2010) 19(63) The Journal of Contemporary China; and B. Van
Rooij, ‘Regulating Land and Pollution at Lake Dianchi: Lawmaking, Compliance and Enforcement in a Chinese and
Comparative Perspective’ in Mattias Burell and Marina Svenson (eds), Making Law Work, Chinese Laws in Context (2011)
367-403. Van Rooij’s contribution to this chapter was made possible by a generous grant from the Netherlands
Organization for Scientific Research (NWO) under their WOTRO Science for Global Development grant scheme.
 strengthened or engaged with.11 However, a growing body of evidence suggests that poor people in
developing countries have limited access to the formal legal system and that their lives are largely
governed by customary norms and institutions.12

As such, customary justice systems play a much more important role in the lives of many of the
world’s poor than do state justice systems. One study refers to figures collected by development
cooperation departments in the United Kingdom and Denmark, indicating that, in some countries,
up to 80 percent of the population is governed by customary justice systems and has little to no
contact with state law.13 These figures are corroborated by findings from academics who study
African law, showing that customary justice “governs the daily lives of more than three quarters of
the populations of most African countries”,14 while according to one author, “up to 90 percent of
cases in Nigeria are settled by customary courts”.15

Customary justice systems are thus the lived reality of most people in developing countries,
especially in rural areas. On the one hand, it is a choice, in cases where people select customary
justice institutions over state institutions for their perceived positive attributes. On the other hand,
it is a need, in localities and cases where limited penetration of state institutions or lack of access to
them is combined with a strong or at least a stronger local presence of customary institutions.

Positive attributes associated with customary dispute settlement include physical accessibility, the
use of familiar procedures and language, the limited costs of dispute settlement procedures, the
short duration of case resolution, knowledge of the local context among the dispute settlers, and the
more restorative nature of the process. Less positive aspects include social pressure on disputants
not to refer a dispute to a state court and disputants’ fear of reprisal or social ostracism should they
enter the formal justice system.

Notwithstanding the importance of customary dispute settlement for the majority of the poor, the
prominence of customary justice systems in first instance lies more in the regulation of important
aspects of daily life, such as access to land and natural resource management, and family issues
such as inheritance and marriage, than in the settlement of occasional disputes. In fact, the
administrative and dispute settlement powers of traditional leaders are intrinsically connected:

(a)ny resident living under their jurisdiction who wishes to appeal a ‘judgment’ of
theirs must think very carefully what the cost of that decision is going to be. Given the
fact that they and their extended family may need the chief’s goodwill for a future
decision in relation to local government functions — allocation of land, invitation to be
an nduna (advisor), inclusion in a development project, referral to any other
government service — all these decisions are interrelated.16

8 Several of the positive attributes of customary dispute settlement mentioned — including physical
presence, familiarity with local context and limited costs — are also applicable to customary
administration. In particular, in debates regarding natural resource management, food availability,
and natural resource depletion and degradation, there are strong proponents of customary
administration. They contend that the involvement of local people and their local normative systems
enhance sustainable development. Local communities have a tradition of living close to nature and
can thus provide insights into resource allocation, development and management that would not be
exploited if a purely state-centric approach were adopted. In addition, the study of common pool
resources management argues that customary, communal and natural resource management
systems are more efficient and effective than their private or state alternatives.17

The limited effect of reforms in the state justice sector on the majority of the poor, combined with
increased recognition of the wide reach and accessibility of customary justice systems have led to a
changing attitude among donors towards customary justice systems and towards an interest in
building on their positive elements for the benefit of the poor. This approach is consistent with the
 Chapter 1
rise of ‘bottom-up’ legal development cooperation approaches,18 which seek to directly reach the
poor or marginalized groups through their interventions, instead of hoping that state law reform
projects ‘trickle down’ to benefit those at the bottom of developing societies.

1. Overcoming the negative aspects

This new donor engagement not only focuses on enhancing the positive aspects of customary
justice systems, but also tries to overcome a number of their negative aspects. Customary justice
systems can be susceptible to elite capture. In a setting of mediated or negotiated dispute
settlement, domination by power holders can be detrimental to the poor and disempowered.
Discussing options for alternative dispute resolution based on customary institutions in Africa,
Nader states “if there is any single generalization that has ensued from the anthropological research
on disputing processes it is that mediation and negotiation require conditions of relatively equal
power.”19 She therefore argues that customary dispute resolution can only work if it is backed up by
state law and if there is a possibility of state law as a last resort: “The ideal of equal justice is
incompatible with the social realities of unequal power so that disputing without the force of law is
doomed for failure”.20 In its study of access to justice based law reforms, the United Nations
Development Programme (UNDP) similarly finds that traditional and indigenous justice systems are
susceptible to elite capture and may “serve to reinforce existing hierarchies and social structures at
the expense of disadvantaged groups.”21 A World Bank-sponsored study of dispute resolution in
Indonesia carried out within the World Bank’s Justice for All program, made similar conclusions. It
found that while villagers preferred to solve disputes informally and outside of state structures, such
dispute resolution was not successful in cases where there were large power imbalances between
the parties.22 Elite capture is especially problematic when customary checks and balances have
eroded, such as procedures to depose malfunctioning chiefs.

In studies dealing with customary land management, the danger of elite capture has also been widely
recognized. A number of studies regarding customary tenure in African countries reveal the social
differentiation within communities and emphasize the importance of power structures. They describe
internal processes of contestation, assertion and transformation, and portray political struggles to
define and redefine social relations in the customary sphere. A number of these studies demonstrate
that local elites have been able to use their position and the ambiguities of customary law to
appropriate land to further their own economic and political interests. This includes traditional leaders
who have ruled arbitrarily, with few checks and balances on their administration, giving power
considerations precedence over objectives of development.23 Given that state systems can equally be
captured by particular elites, a switch from customary to state law or disputing systems will not
automatically solve this problem. Instead, both justice systems need to be harnessed against elite
capture, incorporating proper checks and balances, stronger participation in norm formation, and
guarantees for impartiality of adjudicators; this may be equally if not more challenging to do in 9
customary than in state justice systems.

A second issue is that customary law and customary dispute settlement and administration may
violate human rights standards and constitutional provisions. This is partly caused by the fact that
judges and community members are often not aware of human rights standards such as the right to
equality and non-discrimination. Another problem is that customary criminal procedures do not
necessarily provide victims and suspects with minimum fair trial and redress standards.24 Further,
some local norms and practices, such as public humiliation and physical violence, or institutionalized
discrimination of certain groups derived from traditional values and hierarchal notions may directly
contradict human rights standards. A typical example is where customary justice systems lack gender
equality and violate rights of non-discrimination. Customary systems are widely regarded as
patriarchal and therefore “systematically deny women’s rights to assets or opportunities”.25 Customary
gender perspectives may even be so deeply inculcated that they “leave many women … resigned to
being treated as inferior as a matter of fate, with no alternative but to accept their situation.”26 This
 critique is leveled both against processes of customary dispute settlement and customary
administration. Dispute settlement issues include the fact that courts lack women judges, women face
cultural impediments to participate in court debates, and in some cases are even required to have their
interests represented by their husbands or male relatives. Customary administration issues include
that most leadership positions are held by men and that land ownership is often vested in men, while
women exercise only derived rights. Such norms and practices operate to create a gender bias, for
instance in cases of inheritance and divorce. Some studies see the gender bias of customary justice
systems as an incorrigible trait, and advocate for a complete disengagement with customary justice.27
Others reason that customary systems will not disappear in the near future, and therefore the issue of
reform should be taken seriously.28 The latter view is well received by legal reformers.

A third problem is that customary systems are deemed of limited effect in stimulating economic
development. This view has been debated since the colonial period, but is now commonly linked to
the Peruvian economist Hernando de Soto. He argues that most property and businesses of the
poor are regulated in informal (non-state) normative systems and are not formally recognized by
state law. This excludes them from participation in larger markets and hampers their access to
formal loans.29 Proponents of this view hold that “[e]conomic transactions remain unpredictable,
insecure, and limited”30 and that assets regulated under a customary regime will not be linked to
capital markets and thus remain underdeveloped. De Soto thus propounds the idea of finding
bridges between informal non-state property arrangements and an accessible system of formal
state law.31 De Soto’s work, while often criticized,32 has become influential in law and development
studies, and even more so among policy makers.

Thus, while there is growing recognition of the importance of customary justice systems, there are
a number of issues regarding their operation that need to be addressed, including elite capture,
human rights protection, and, in certain cases, the integration of non-state arrangements in wider
capital markets.

2. The complexity of customary justice systems

If legal reforms targeting customary justice systems are to be effective, development actors must
understand and address their complex nature. Central to this complexity is the difficulty in
identifying the appropriate norm that applies to certain behavior or to a dispute.

First, there are multiple versions of customary law. In many countries, it is possible to distinguish
between codified customary law, judicial customary law, textbook customary law, and living customary
law.33 Codified customary law refers to legislation codifying the customary law of a certain jurisdiction.
This provides legal certainty and accessibility to the customary law, while at the same time unifying,
10 simplifying and crystallizing it, often in a formal language that is different from that used in the original
community. Judicial customary law refers to the norms developed by judges when applying customary
norms in courts and as laid down in national law reports. Here also, customary law is made more
certain and accessible, but at the same time can be crystallized, unified and formalized. Textbook
customary law refers to authoritative texts written by state administrators or anthropologists, often
used by state courts or administrators when trying to ascertain appropriate customary norms. It offers
a non-legal and less formalistic source on the appropriate customary law. Some of the drawbacks of
textbook customary law are that they only exist for certain groups and therefore fail to provide as much
legal certainty as nation-wide codifications, and that they freeze the norms of the groups discussed.
Finally, living customary law refers to the norms that govern daily life in the community at the local level.
There may be considerable differences between these different versions of customary law, especially
between the living and written versions, because living customary norms are inherently dynamic.

Since written versions of customary law may be as alien in local communities as state law, today there
is increased recognition that engagement with customary justice systems implies engaging with living
 Chapter 1
customary law. Ascertaining the norms of living customary law presents its own challenges. A first
problem lies in what questions to ask in order to determine the living customary law. Different
questions may lead to different answers and thus different norms. For example, one could ask a
community member directly what the appropriate norm is, or pose a hypothetical question asking
what would happen in a fictional case. Alternatively, one could try to ascertain the appropriate norm
empirically by gathering data on which norms are applied in disputes34 or which norms are observed in
daily life outside of exceptional dispute cases.35 Asking directly or hypothetically, however, may lead to
answers that portray an idealized norm that is seldom practiced.36 Further, norms derived from dispute
practices may be different and exceptional when compared to those observed in daily life.37 In addition,
it may be difficult to distill customary norms solely by investigating disputes or observed behavior.38
Ideally, a combination of these methods should be used that is designed in such a way that it offers
sufficient representation and validity, a process that can easily become expensive and time consuming.
Even when thorough research has been conducted, there is no certainty that a single appropriate norm
may be identified as the methods may produce different results.

This complexity is compounded by the fact that within living customary law, there may be different or
competing versions of particular norms both among and within different communities or customary
groups.39 This is especially true in contexts where large economic or social transformations have
occurred that have altered the social fabric and economic structures of the community, giving rise to
competing values, for instance, concerning the position of women or what should be done with
proceeds from newly available lucrative land deals.40 For this reason, who within the local community
is asked about applicable customary norms, is critical. Relying solely on elite representatives, such as
chiefs or elders, may easily lead to a biased representation of living customary norms, not only failing
to capture the existing variety, but worse, failing to understand the versions that may benefit sub-altern
community members. The unwritten character of living customary law, especially where contested and
competing versions exist, imbeds a high level of flexibility in customary justice systems.

In addition to the different versions of customary law, customary justice systems are particular for
their flexibility and negotiability, even where norms are clear. It can be generally said that customary
justice systems do not aim to resolve disputes through adjudication, deciding who wins and loses,
but through mediation, seeking to facilitate a settlement that is acceptable to the parties. In this
process, customary norms do not serve to produce direct outcomes, but are the starting points for
discussions leading towards settlements. Some see such negotiability and the aims towards
settlement and mediation as opening up access to justice even for marginalized community
members; others, however, point out that, in practice, not everything is negotiable and that some are
in a better bargaining position than others.41

Legal development actors, and the state and non-state organizations they work with, often lack
knowledge about the different versions of living customary norms, the negotiable nature of
customary justice, and the implications this has for engagement with customary justice systems. 11
Time and resource constraints easily result in quick studies that accept elite representations of
customary law. Such accounts can overlook the fact that there are different versions of such law or
that the elite version is contested. Projects that adopt such norms as their starting point may
actually be strengthening the position of elites in the community while weakening the marginalized
group they seek to empower. Likewise, power differentials may be strengthened where the
negotiable nature of customary law is not taken into account, and efforts subsequently fail to focus
on harnessing weaker parties in the negotiated settlement processes.

In the next sections, this chapter discusses two general approaches for facilitating improved
functioning and effectiveness of customary justice systems: stimulating linkages between
customary and state justice systems, and community-based activities directed at citizens governed
by customary justice systems and their leaders. It demonstrates how the different and complex
character of customary law impacts on and offers challenges and opportunities for customary legal
empowerment.
 3. The institutional approach: Linking customary and state justice systems

An important method used to improve the functioning and effectiveness of customary justice
systems is to develop institutional links between customary and state justice systems. There are
three types of linkages: between state and customary norms; between state and customary dispute
resolution mechanisms; and between state and customary administration. Such linkages have the
potential to incorporate human rights into customary norms, dispute resolution and administration,
and to create checks and balances against elite capture. Linking customary and state justice
systems is also seen as a means of enhancing the certainty and accessibility of local norms, which
can help stimulate economic growth in customary settings.42

3.1 Linking norms

The weakest institutional normative linkage is when a state recognizes customary law without
specifying its contents, for instance through a provision in the constitution or in another relevant law
relating to the application of customary law.43 Such general recognition can improve the effectiveness
and strength of customary norms vis-à-vis external parties, but little affects the intra-communal issues
mentioned above. A stronger institutional normative linkage can be created through the codification of
customary norms into state legislation. This involves a process of selecting between the different
versions of customary law (as occurs in any type of codification)44 through which the norms deemed
unfavorable in terms of human rights, protection of marginalized groups or the stimulation of economic
activity can be adapted or discarded. Codification has the additional benefit of making complex and
varied norms more certain and accessible, including to those outside of local communities or those
lacking the research resources necessary to understand local norms. Accordingly, the increased
accessibility and certainty of customary norms could theoretically allow for economic transactions at
a larger scale, and thus help support economic activities between the community and external
markets, hence stimulating economic growth. There are, however, also a number of reasons to be
hesitant about codifying living customary law, as this can affect the fluid, informal and accessible
character of the original customary norms.45 Additionally, codification without a proper study of the
variations of customary norms within a community, and especially when sub-altern versions are not
taken into account, may have the effect to strengthen the norms governing elite interests. Moreover,
codification of customary norms faces grave problems of credibility and acceptability, and might be
ignored by many as not reflecting their rules of customary law.46 Ultimately, such codification may lead
to another layer of written customary law while doing little to address the problems within the living
customary justice system.

3.2 Linking dispute resolution mechanisms

A well-known possibility for linking customary and state dispute resolution mechanisms is through
incorporating customary dispute resolution mechanisms into the court structure by establishing
customary courts presided over by traditional authorities as the first tier of the legal system. Thus
12 incorporated, traditional authorities can then be required to administer justice in accordance with
certain procedures and while maintaining human rights standards. When a system of appeal is
established, this opens up possibilities for state courts to oversee the adjudicative work of customary
courts, and for the development of checks and balances that can ensure adherence to procedural and
substantive standards. The question is whether such checks and balances would work in practice. First,
citizens may not be able to invoke their rights in state courts even when the right of appeal exists
because the basic conditions required for access are still lacking. Second, appeal judgments may do
little to affect the work of customary dispute resolution mechanisms outside of the case in question.47

Where state courts are allowed to adjudicate cases on the basis of customary rules, a link is created
between customary and state justice systems that involves norms as well as dispute settlement
mechanisms – and thus straddles the divide between this section and the latter. The advantage of this
type of linkage is that state judges may be well placed to safeguard human rights and fair procedural
standards when applying customary law. The involvement of state courts also diminishes opportunities
for elite cooptation. Due to their written character, state customary judgments may offer increased
 Chapter 1
certainty and accessibility of customary law, which may in turn enhance predictability and security of
economic transactions and thus facilitate participation in larger economic markets. On the other hand,
state courts are less accessible, especially to marginalized citizens, and their judgments may have
limited impact on living customary norms.48 The formal character of state court decisions is
exacerbated because many judges are trained to base their decisions on written texts and thus prefer
to apply codified or judicial customary law (based on earlier decisions) rather than attempt to
understand and apply living customary law. The South African Constitutional Court has recognized this
problem and encourages judges to apply living law by providing that living customary law can overrule
codified versions.49 This opens up an additional set of problems, however, since judges have to identify
what the living norms are, often by relying on (expert) witnesses or assessors.50 Ideally, such aids would
have knowledge of local culture, language and customs, and could inform the state judge on a case-by-
case basis as to the appropriate norm. While in theory this method could help preserve the original and
fluid nature of the customary norms to be practiced in state courts, several problems may impact upon
the impartiality of such state adjudication. First, impartiality of local experts may be especially difficult
when norms are contested and when there are different customary norms at play. Second, the
particular nature of customary norms, with their inherent informality, flexibility and negotiability, in
addition to the inherent unpredictability of dispute settlements do not correspond to the precision and
certainty generally required by assessors and expert witnesses when testifying about customary
norms in court proceedings.51 The integration of state and non-state law in state courts is thus highly
difficult and can lead to situations where court decisions are out of step with local realities and thus
have limited impact. Alternatively, they can result in courts strengthening elites who may play a
dominant role in providing information, especially about contested norms.

3.3 Linking administration

A third form of state and customary institutional linkages that may improve the functioning of
customary justice systems is by linking state and customary administration. Administration needs
to be addressed as it plays an important role in the implementation of customary law. Moreover,
customary administrators can be involved in local power abuses or human rights violations. Linking
customary and state administration should ideally increase the accountability of customary
administration, prevent power abuse and human rights violations, and enhance predictability and
security of customary administration, and thus facilitate local transactions for external economic
actors. However, it should do so without undermining the local legitimacy of customary
administrators.52 There are four main ways in which state and customary administration can be
linked.53 First, the state can recognize customary administration without defining official roles for
traditional leaders, nor interfering with their activities as long as the law is not broken.54 This does
little to reform customary administration. For this to occur, a more elaborate linkage is necessary, for
example, by integrating customary administrators into the state administration system and defining
their customary functions and/or delegating them formal state functions.55 Third, the state can
establish a local state structure parallel to the customary administration, aiming to achieve a local
balance of power. Fourth, hybrid local structures can be established in which both state and 13
customary administrators are represented.

In the four above-mentioned links, the extent to which customary administration is made subordinate
and answerable to state organs varies. Several mechanisms can be employed to boost the accountability
of customary administrators. When states formalize customary administration, they can legally define
their authority as well as provide details as to the way it should be exercised. Such forms of regulation
can then be implemented legally when administrative abuses are questioned in court. Customary
authorities may also be bound to regulations through political or administrative means. Payment of
salary establishes a certain amount of administrative control, and can also be seen as a way to transform
chiefs into civil servants, accountable to senior civil servants and subject to disciplinary sanctions.56
Additionally, the provision of a salary could diminish chiefs’ incentives for self-enrichment or corruption
in the discharge of their responsibilities and for holding on to outdated customs that yield financial
benefits. Another political mechanism is the state exercising the power to ratify the appointment of
traditional leaders, and thus also to withhold such ratification. The history of Ghana shows that in
 different political constellations, this power can be exercised in different ways. Some Ghanaian regimes
have exercised constraint, almost automatically endorsing local selections, while others have used such
authority as an important tool for political interference in the selection of chiefs.57 When no such formal
power lies with the state, state organs may seek replacements of customary administrators by exploiting
fragmentations within the local polity, aligning themselves with a rival traditional power group to replace
the original administrator. It should be noted that the motives for replacing customary administrators
often involve power-political considerations as well as issues of customary maladministration.58

Formal recognition of the institution of traditional authority by the state can transform the position and
legitimacy of traditional leaders. On the one hand, it can strengthen the position of traditional
authorities or, in countries where such positions had previously been abolished such as in Guinea and
Mozambique, it can assist their resurgence. On the other hand, formal recognition may cause leaders
to lose their independence and risk that they be identified with state politics and state failure. State
influence on the selection of individual candidates further impacts their independence. Achieving
accountability can therefore come at a cost of undermining the position of customary administrators.
At the same time, there is a real danger that administrative linkages will fail to deliver results in terms of
accountability and prevention of power and human rights abuses. Mechanisms to ensure compliance
with formalized limits of delegation and standards of administration remain weak, especially since they
are often not strongly exercised. Here, local and national power structures are influential. In countries
where customary authorities have a strong national power base, either for historical reasons or through
their role in national elections as vote brokers,59 state authorities may not be able or even willing to
ensure compliance through legal, administrative or political mechanisms. Even a highly formalized
customary-state linkage may have little effect in such situations. Linking customary and state
administration may even run the danger that local state institutions aligned with customary
administration, and especially hybrid state-customary institutions, are co-opted by customary power
holders. Ironically, then, linkages sought to deal with power abuses may only strengthen them.

3.4 A balancing act

Clearly, institutional linkages, whether sought through norms, disputing mechanisms or
administration, are important mechanisms for improving the functioning of customary justice
systems; however, establishing links that help attain this goal remains difficult. Linkages may alter
customary arrangements, changing their nature in such a way that the original strengths of
customary justice systems, its informal and accessible character, no longer exist. Alternatively, the
effect of linkages may be thwarted or co-opted by customary elites and therefore fail to accomplish
its goal. The main challenge for approaches to institutional linkages, therefore, is to find a balance
between retaining the informal character, local accessibility and legitimacy of the customary justice
system, while making sufficient improvements on its functioning.

It should be noted that donors may find it difficult to make institutional linkages an object of project-
14 type intervention, because they are often bound up in larger historical transformations occurring within
national politics, and their reform is usually a national affair where international donors play only a
limited role. Linkages remain important, however, because they impact on the functioning of
customary justice systems and can serve as entry points for inducing change. International donors
should thus be aware of existing institutional links and the extent to which they can be altered within the
national or local polity as a means of affecting the functioning of customary systems. Here, reform can
also address state institutions that are linked to customary justice institutions, as improvement in the
functioning of state institutions may benefit the functioning of the linked customary institution.

4. Community-based approaches

Another approach to improve the functioning and effectiveness of customary justice systems is to
target activities at marginalized community members. Such activities include the deployment of
paralegals, legal literacy training, community mapping of local land rights and rights education
 Chapter 1
campaigns.60 Such interventions can stimulate a demand for rights within the community, as
proposed by Ignatieff,61 which can then translate into pressure on customary justice systems to
better protect human rights. They can also empower marginalized community members and
reduce power imbalances and elite capture. Such interventions are promising because they seem
better equipped to directly benefit marginalized citizens governed by customary law, and may be
able to address issues of power imbalances as they occur within the customary systems, without
pushing for an alteration of the system’s basic tenets.

United Nations Development Programme (UNDP) has summarized its experiences with these kinds
of interventions by studying projects in Africa, Asia and Latin America, and by examining what has
worked and what has not. It found, for example, that:

■ dialogues with elders and community leaders in Somalia helped to improve local dispute resolu-
tion mechanisms to make them more aligned with human rights standards and the protection of
weaker groups;62
■ legal awareness training through literacy courses, information groups, education campaigns, the
publication of guidebooks on state and non-state laws, and itinerant street theatres helped
improve the position of vulnerable groups and provided entry points for human rights in
Bangladesh, Malawi, Timor-Leste, Indonesia and Cambodia;63
■ legal aid was enhanced through paralegals, lawyers’ networks, dispute clearing houses, dispute
resolution panels and ADR training in Sierra Leone, Thailand, Timor-Leste, Puerto Rico and
Cambodia;
■ capacity development for informal justice actors in the areas of mediation and citizen’s rights
worked reasonably well in Burundi, Sierra Leone, Timor-Leste, Rwanda and Bangladesh.

UNDP also discusses challenges encountered and programmatic failures, such as in Thailand,
where it was difficult to train lay persons into paralegals. Further, it reports that capacity-building of
informal justice institutions brings about challenges when ceremony becomes more important than
capacity (encountered in Burundi), when gender quotas for dispute settlers undermine community
cohesion (Burundi), when reconciliation emphasis is unsatisfactory for aggrieved parties (East
Timor), when strengthening informal dispute mechanisms perpetuates the absence of formal
institutions (Peru), and when newly built capacity lacks sustainability (Peru, Bangladesh) and local
legitimacy (Bangladesh).64

A report on practices to secure land rights in Africa, sponsored by the International Institute for
Environment and Development/Food and Agriculture Organization of the United Nations (IIED/FAO)
discusses how civil society-type efforts have worked in the context of non-state law systems.65 The
report shows that interventions such as paralegals, legal literacy, public interest litigation, legal
clinics, and rights information centers have been successful in improving land tenure security in
Africa’s customary regimes.66 These studies, however, also show that interventions are no panacea 15
and that persistent problems remain, including lack of capacity among paralegals,67 resistant local
elites who fear the undermining of their power base,68 donor dependency and lack of
sustainability,69 community lack of confidence and trust,70 and ‘cut-throat antagonism’ between
weak and/or poor communities and powerful outside investors.71 Of these challenges, elite
resistance against change is especially troubling because elite dominance of the customary
systems is a key impediment that interventions seek to overcome.

Community-based approaches often explore the use of national or international state norms and
institutions. They seek to contrast the functioning of customary justice with norms of state justice,
for example, by raising awareness of state justice norms, organizing debates among customary
authorities about international human rights standards, or providing legal aid to pursue litigation of
customary abuses in state courts. Such strategies thus try to improve the functioning of customary
justice systems by invoking the authority and power of justice institutions external to the local
community.
 Community-based approaches can also focus on intra-community institutional changes, with a less
explicit recourse to the state, for example, through local activists who work to improve customary
dispute procedures and administrative checks and balances or to make structures of customary
leadership or dispute settlement more inclusive. Namibia offers two examples of this. In Uukwambi
Traditional Authority, efforts have been undertaken to enhance the position of women in the
customary justice system by instituting female deputies to male headmen, as well as headwomen.
In the same area, around 30 people were trained as community legal activators to enhance the
administration of justice in traditional courts. This training included a strong gender component.
Another example is how Timap for Justice, a local legal aid NGO in Sierra Leone, deployed paralegals
to eliminate adverse practices through negotiations with traditional leaders and educating them on
the harmful impact these practices have on communities.

Community-based activities can be most effective when they are able to make use of the
opportunities offered by the flexibility and negotiability inherent in customary justice systems.
Improvements can be achieved by identifying, voicing and supporting versions of living customary
norms that favor marginalized groups, by supporting the marginalized in dispute-related
negotiations, or by seeking to reinvigorate customary administrative checks and balances. The full
possibility, potential impacts and limits of using the opportunities offered by customary justice
systems, however, remain largely understudied.

Community-based activities are an important addition to institutional approaches when seeking to

improve the functioning of customary justice systems. They are a critical component of donor-led
reforms as they can be initiated more easily than institutional linkages, which are more dependent
on national politics. Community-based interventions and institutional linkages reinforce each other.
On the one hand, community-based activities help to improve the functioning of institutional
linkages, by enhancing awareness of state norms and invoking state rights and related state dispute
and administrative procedures in customary settings, and by diminishing resistance against state
norms and institutions. On the other hand, community-based interventions often require linkages to
strengthen the functioning of customary justice.

5. Customary legal empowerment

It has been observed that improving the functioning of customary justice systems presents certain
challenges. Institutional approaches, which link customary and state norms, disputing mechanisms
and administration, must find a careful balance between retaining the informal character, local
accessibility and legitimacy of the customary justice system, while making sufficient changes to
reform its operation. Such balance is not easily found, especially in situations where local elites are
able to resist or even co-opt linkages to state institutions. Some community-based activities pose
16 similar questions of legitimacy and flexibility. One can think of attempts to make the institutional
structure of the customary justice system more inclusive or to have communities or traditional
leaders put into writing some of their laws. Other community-based activities are less prone to upset
this balance because they are unlikely to fundamentally alter the set-up of the customary justice
system. Instead, they change its functioning by involving state norms through the provision of legal
awareness trainings and legal aid for customary justice users or capacity development for justice
providers. All these activities occur, however, within the context of established linkages between
state and customary justice institutions, and are often dependent on such linkages for their
effectiveness.

The distribution of power plays a vital role in improving the functioning of customary justice
systems. Legal reforms that aim to empower marginalized groups may decrease the relative local
power base of original elites. However, insufficient knowledge of the complexity of customary justice
systems may cause linkages to be forged between state institutions and elite norms and institutions
in the customary justice system, thereby strengthening the subordinate position of marginalized
 Chapter 1
community members. Elite power is also a hindrance for institutional and community-based
activities as customary power holders have been able to resist and co-opt reforms, especially when
they are seen as a threat to the elite power base.

Bottom-up legal development approaches stress the importance of taking into consideration that
law and power are intrinsically linked, expressing this most clearly through the concept of ‘legal
empowerment’. This concept, used (albeit with slightly different meanings) at the international level,
including by the Commission for Legal Empowerment of the Poor (CLEP), UNDP, the World Bank,
the United States Agency for International Development (USAID) and the FAO, reflects that legal
tools may be used to empower marginalized citizens and attain greater control over the decisions
and processes that affect their lives.72 Legal empowerment could also refer to activities undertaken
to tackle power asymmetries that undermine the effective functioning of legal tools for marginalized
citizens, preventing access to justice and ultimately their development.73

Addressing problems in customary justice systems requires a form of legal empowerment.

Organizations working on community-based activities have experimented with borrowing from state
law attempts at legal empowerment, employing a combination of education and action by enhancing
awareness, improving legal aid, and advocating for better rights.74 It is important to recognize that
rights awareness, legal aid or rights advocacy may require rethinking when undertaken in the context
of customary justice systems. Such activities often refer to state law: awareness of human rights or
national legislation, legal aid to pursue actions in state courts or advocacy to obtain better legal
protection under national legislation. However, it is possible to envisage customary legal awareness,
customary legal aid or customary rights advocacy that focuses on the norms and institutions in the
customary system to press for favorable change from within.

Therefore, improving the functioning and effectiveness of customary justice systems requires a
particular kind of legal empowerment - ‘Customary Legal Empowerment’. This can be defined as
processes that: i) enhance the operation of customary justice systems by improving the
representation and participation of marginalized community members, and by integrating
safeguards aimed at protecting the rights and security of marginalized community members;
and/or ii) improve the ability of marginalized community members to make use of customary justice
systems to uphold their rights and obtain outcomes that are fair and equitable.

6. Discussion of the papers

This edited volume aims to identify and understand the possibilities for customary legal
empowerment. The contributions all critically examine change processes in customary justice
systems and the role these systems can and do play in the legal empowerment of marginalized
groups and individuals. Some chapters focus on the possible involvement of donors, while other 17
chapters focus largely on domestic actors, viz. governments, traditional authorities and customary
justice users. The contributions analyze both intra-communal power relations and the institutional
linkages and relationships between customary and state justice systems, in relation to norms,
dispute resolution mechanisms and administrative fora. They identify possible entry points for
customary legal empowerment, lessons that can be replicated from state-based legal
empowerment interventions, and strategies for overcoming the above-listed challenges.

Erica Harper in her contribution “Engaging with Customary Justice Systems” focuses on the
involvement of donors in reform of the customary justice sector. She first discusses the three
primary reasons why assistance to customary justice systems has been largely neglected by legal
development agencies: fear of institutionalizing sub-standard justice for the poor; incompatibility
with the programming approach of some development agencies; and fear of increased legal
pluralism and forum shopping, which facilitates manipulation of the justice system by more
powerful, wealthy or more informed disputants. Harper nevertheless describes growing support for
 the engagement with customary justice systems. In certain contexts the state justice system may
be non-operational or engagement with it considered inappropriate, for example where the justice
sector is highly corrupt or a known conspirator in the perpetration of rights violations. Generally
speaking, customary justice systems are simply too important to ignore due to their critical impact
on livelihoods, security and order. The fact that certain customary laws or sanctions breach human
rights standards makes the case for active involvement only more compelling. Harper then
describes two kinds of approaches to customary justice reform programming. Firstly, fix-it
approaches, that aim to address certain flaws or constraints inherent in customary justice systems
– such as limited participation of women and youth, the unwritten nature of customary law, and
certain negative customary practices. Secondly, Harper describes an alternate solution to reforming
customary justice systems directly, viz. to support the creation of new institutions that offer other
forms of dispute resolution, such as community-based paralegals and NGO-led dispute resolution
fora. These institutions will promote access to justice and indirectly improve the operation of
customary justice systems through heightened competition. Each approach has its drawbacks.
Whereas fix-it approaches tend to overlook or contradict some of the fundamental tenets of
customary justice that make such systems workable and responsive to user needs and
expectations, alternative dispute resolution fora will generally offer quite measured outcomes, as
they need to be voluntarily accepted and utilized and therefore the approaches adopted and
outcomes delivered by alternate justice providers generally need to be not too far removed from
customary norms. Harper concludes with a number of innovative ideas for reforming customary
justice systems, including linking self-regulation to the formal recognition of customary fora,
drawing on positive customary norms as a basis for change, and empowering users to be effective
change agents.

Ross Clarke in his chapter “Customary Legal Empowerment: Towards a More Critical Approach”
underscores the basic tenet of this book in stating that while legal centralism still tends to dominate,
engagement with customary justice systems has entered mainstream thinking in legal development
and rule of law programming. Clarke states that the rise to prominence of customary legal
empowerment has, occurred in the absence of a rigorous theoretical debate. A superficial
engagement with customary justice systems leads most development agencies to put a narrow
emphasis on the human rights implications of customary justice, while neglecting other possibly
negative attributes of customary justice systems such as a lack of transparency, minimal
accountability and vulnerability to elite capture. In considering the rise of customary law in justice
sector reform, Clarke concludes that most justice reform policies undertake a simplistic balancing of
customary justice systems’ practical benefits – including accessibility, efficiency, legitimacy, social
cohesion and participation – against the possible violations of human rights. In the rush to capitalize
on the benefits of customary justice systems, many complex, fundamental questions as to how two
legal systems with radically different traditions, form and operation are to function together, reinforce
the other and promote the rule of law have been overlooked. In this process, contemporary legal
18 empowerment policy and practice neglect fundamental conceptual issues regarding sovereignty,
jurisdiction, accountability and the political function of law. Two case studies of legal empowerment
projects, in Timor-Leste and in Aceh, Indonesia, highlight the superficial engagement with customary
justice systems and its consequences, and lead to several practical recommendations to achieve
more effective, conceptually grounded customary legal empowerment.

In their contribution “Reducing Injustice? A Grounded approach to Strengthening Hybrid Justice

Systems: Lessons from Indonesia”, Samuel Clark and Matthew Stephens similarly call for a more
grounded approach to engagement with customary justice systems. They argue that developing
countries are commonly characterised by an unpopular and distant state as well as debilitated
community institutions. Both state courts and local dispute resolution mechanisms suffer from
systemic inequalities that reaffirm existing power relations to the detriment of the socially excluded.
Rather than idealizing one justice system over the other, a more realistic strategy is to focus on
overcoming the specific injustices of both state and customary systems. This can be done by
creating ‘hybrid’ justice institutions through a process of partial incorporation of customary justice
 Chapter 1
systems into the system of state justice. To successfully marry the two systems that draw on
different normative traditions, programs should be designed by using a grounded approach. This
approach is attuned to the local context, it focuses on reducing tangible injustices and weaknesses
in existing arrangements in incremental steps and in accordance with local timetables and
opportunities, rather than attempting to achieve an ideal form of justice through a prescription of
‘one-size-fits-all’ policies and institutional designs. This chapter thus seeks to provide pragmatic
guidance to practitioners and policymakers by suggesting a process of engagement in five key steps.
The authors finally discuss three pilot programs by the World Bank in Indonesia to illustrate their
proposed grounded approach.

In “Policy Proposals for Justice Reform in Liberia: Opportunities under the Current Legal Framework
to Expand Access to Justice” Amanda Rawls examines policy decisions currently under
consideration in Liberia regarding the interaction among customary and statutory law and justice
mechanisms. The formal justice system is not the forum of choice for most Liberians as it is plagued
by extensive delays and is widely believed to be corrupt. Research shows that, even if the formal
system were to operate fairly, the average Liberian would prefer to use the customary system as it
is perceived as more holistic, taking account of the underlying causes of the dispute and seeking to
repair the tear in the social fabric. However, donors and legal practitioners voice concerns about the
customary justice system. These concerns include issues such as gender equality, due process and
the separation of power. Rawls looks at how a participatory national consultative process is
contributing to the development of policy options, and how the realpolitik of maintaining post-
conflict peace and establishing a government monopoly on the use of force informs the government
participation in the policy debate. In addition, the paper describes the significant sway donor
priorities – in particular their preoccupation with human rights – and finances hold over the
government. Subsequently, Rawls explores three concrete policy proposals for providing more
acceptable justice outcomes for the Liberian people by: i) incorporating customary resolutions of
criminal matters as recommendations for case disposition – by structuring plea agreements – in
the formal justice system; ii) developing alternative forms of oath-taking in criminal prosecutions
that permit adherence to traditional belief systems while not violating Constitutional requirements;
and iii) writing down customary dispute resolution guidelines, rationales, and practices, so that they
can be evaluated for application in relevant cases in the formal courts. The paper looks at how the
consultative process led to each proposal, how each proposal conforms to the political imperatives
of the nation’s Justice Ministry, what legal obstacles and other challenges the government might
face in implementation of such proposals, and what prospects each proposals has for advancing the
development goal of enhancing access to justice.

The chapter “Ensuring Access to Justice through Community Courts in Eritrea” by Senai
Andemariam addresses the effectiveness and impact of Eritrea’s community court system.
Following an historical overview of the evolution of customary justice systems and their interaction
with the state justice system in Eritrea, Andemariam provides a description of the current 19
community courts system, which was established in 2003. This system was created with the aim of
bringing the state legal system both physically and psychologically closer to the people while
integrating and formalizing customary dispute resolution processes into its lowest tier of courts. To
achieve this effect, these courts combine the powers of both systems in an attempt to reconcile
disputants, most likely on the basis of customary law and practices, and when such negotiations fail,
to pass judgement based on national laws. The courts consist of three judges, who are locally
elected. The absence of uniform election rules was intended to allow each community to resort to its
preferred, most probably customary, processes of electing community leaders and judges. Although
not specifically required by law, in practice, it is expected that as far as practicable at least one of the
judges of each community court must be a woman. This resulted in 20 percent women judges in
2003 which increased to 28.4 percent in 2008. With a specific focus on community participation,
the role of women in the legal process, barriers to justice and out of court settlements, the chapter
highlights the successful role community courts have played in tackling barriers to justice and
reaching out of court settlements. The mixed character of community courts, viz. the fact that they
 can base themselves upon customary laws to settle disputes amicably while also being mandated
to apply national laws in delivering judgments, gives them the character of a conduit between the
national and the local. As such, they may be effective tools for preserving the nation’s rich pool of
customary laws and heritage as well as transmitting knowledge of national laws into the local arena.

In the chapter “Stating the Customary: An Innovate Approach to the Locally Legitimate Recording of
Custom in Namibia”, Janine Ubink discusses a common problem that governments as well as legal
development agencies encounter in their dealings with customary justice systems: its unwritten
nature. Since the colonial period a number of governments – often aided by researchers – have
attempted to put parts of customary law into writing. More recently, legal development agencies
have shown an interest in the same exercise. Ubink explores such historical and contemporaneous
attempts to record customary laws. She starts with a discussion of the different historical devices
that have been developed for recording customary law: codifications, restatements and case law
systems. The chapter shows that each of these devices has its own dynamics and opportunities, and
that all three devices have serious drawbacks. The most important weaknesses of these recording
attempts are the loss of adaptive capacity as well as the resulting gap between the recorded version
of customary law and the living customary law. Ubink then discusses the remarkable activities
undertaken from the beginning of the 1990s by the Owambo Traditional Authorities in northern
Namibia to come to a self-statement of the most important substantive and procedural customary
norms, while simultaneously adapting some norms to conform to Namibia’s Constitution. She
discusses how and why this process took place, who its change agents were, which norms ended up
on paper and what the effects of this process are in one of the Owambo Traditional Authorities, i.e.
Uukwambi Traditional Authority. Ubink concludes that the self-statement had a profound impact on
the functioning of the customary justice system in Uukwambi, in that it increased the certainty of the
justice system by reducing the discretion of traditional courts, especially with regard to sentencing.
In addition, the adaptations that were made to align Uukwambi’s customary laws with the provision
of gender equality in Namibia’s Constitution are locally well-known and implemented. Finally, Ubink
discusses whether Uukwambi’s success can be replicated elsewhere and discusses three important
factors that set the Uukwambi self-statement apart from other attempts to record customary laws.

Ellen Desmet’s contribution “Interaction between Customary Legal Systems and the Formal Legal
System of Peru” analyses the recognition of indigenous rights and administrative and legal
structures in Peru. The Peruvian Constitution provides that peasant and native communities are
autonomous in their organization, in the use and free disposition of their land, and in the economic
and administrative management within the framework established by law. Desmet argues that the
qualification “within the framework established by law” strongly limits the apparent organizational
autonomy, as Peruvian regulations prescribe an organizational structure consisting of a general
assembly and a board of directors, periodically elected by means of a “personal, equal, free, secret
and obligatory” vote, which is foreign to indigenous communities’ customary organizational forms.
20 Also with respect to land use and economic issues, peasant and native communities are not as
autonomous as the Constitution portrays them as being. In reality, economic policies are decided by
the national government, with little or no involvement of indigenous peoples. The autonomy in
administrative management is furthermore limited by the system of political authorities installed by
the Peruvian state, which represent the executive power in the locality and are charged with
watching over the implementation of government policies as well as with monitoring compliance
with the Constitution and laws. The Peruvian Constitution also establishes the judicial autonomy of
peasant and native communities, again under a qualification, viz. “whenever the fundamental rights
of the person are not violated”. Where judicial institutions are physically remote, the state judicial
system has had a limited influence, but this may change in the future. It is the author’s opinion that,
in the end, one always remains within the logic of state law and there is no real space for customary
institutions and decision-making processes to function. The author displays the impact of the same
processes of “half-hearted recognitions” of customary norms and practices with respect to land
rights and nature conservation. The local implications of such processes are illustrated by the
experiences of the Airo Pai, an indigenous people living in the Peruvian Amazon.
 Chapter 1
In the chapter “Negotiating Land Tenure: Women, Men and the Transformation of Land Tenure in
Solomon Islands”, Rebecca Monson examines the interaction of the customary and state justice
system in two sites in the Solomon Islands. In these sites, the author analyses the transformations in
customary land tenure systems occurring since colonization, and their impact on women. The first
case study shows how, during the colonial era, missionaries and colonial administrators recognized
some male segments of the local polity and disregarded the female segments. The colonial state legal
system also facilitated a strategic simplification of the land tenure system, by enabling certain male
leaders to consolidate their control over the land. In many instances, the foreigners’ perceptions of
property and authority enabled male leaders – who historically had been “caretakers” of the land – to
claim rights wholesale. The resulting alteration in power relations is currently reified by provisions in the
state legal system regulating logging activities on customary land. Legislation provides that any person
who is interested in logging customary land must negotiate with the owners of the land. As was the case
with traders, missionaries and colonial administrators before them, logging companies desire to
indentify and engage with individuals rather than the entire customary community. This is facilitated by
the requirements of the state legal system, which provides for the selection of certain individuals to
negotiate with the logging company on behalf of the customary community. This enables a small
number of individuals to carve out a ‘big man’ status and strengthen their power base within their tribe
by obtaining and distributing logging revenue. While many men are marginalised by these processes,
women as a social group are particularly likely to be excluded. The second case study shows that
traditional concepts of the role of men and women in the customary justice system are translated into
the state legal system in a manner that turns the male leaders’ customary ‘right to speak’ about land
into effective control over land – allowing them for instance to register land in their names and to sell
land – while it negates women’s customary rights over the land. The state legal system thus converts
inequality in decision-making to inequitable distribution of financial benefits. On the basis of these two
case studies, Monson agitates against an overly simplistic assessment of customary justice systems
as discriminatory towards women, and the conclusion that their interests would be better served by the
state legal system. Not only do both cases show that it is exactly at the intersection of the state and the
customary that many landowners find themselves losing out, but also that the new power of male
leaders is contested by drawing on earlier practices of customary justice systems.

7. Conclusion: Taking customary justice systems seriously

Sally Falk Moore’s description of local arenas as semi-autonomous social fields75 already showed
that mere statutory regulation of customary processes and practices often has a limited effect on
the locality. Taking this into account leads to a conclusion that the customary ‘arena’, whether seen
as an obstacle for legal empowerment of marginalized groups and community members or as an
opportunity for such change, needs to be taken seriously. This is clearly demonstrated in Ubink’s
chapter. Discussing new norms to protect widows against property grabbing, Ubink shows that the
inclusion of such norms in ‘self-statements’ by Traditional Authorities was highly effective in the 21
Owambo polities in northern Namibia, where it almost eradicated the practice of property grabbing.
She shows that this contrasts starkly with attempts in many other African countries to outlaw
similar practices by statutory intervention, which have nearly all had a marginal effect on customary
practices in rural areas.

Policy and programmes show a hesitant trend in the direction of taking customary justice systems
seriously. The contributions to this book mainly demonstrate two approaches, which can be termed
as the dialogue approach and the linking approach. Practitioners and policy makers are increasingly
trying to engage in a dialogue with customary communities and their leaders to attempt to convince
them to undertake a modification of their own customary norms, bringing them into alignment with
constitutional provisions, or to at least accept statutory regulations that contradict local customs.
Alternatively, or in conjunction with such efforts, programs focus on the creation of effective linkages
between state and customary justice institutions, thereby bringing state justice closer to the people
at least to such an extent that it enables real oversight over customary justice systems.76
 7.1 Dialogue approach
Several of the chapters of this book give examples of governments and donors entering into a
dialogue with customary communities and their leaders. For instance Rawls analyses Liberia’s
efforts to develop alternative forms of oath-taking that permit adherence to traditional beliefs while
not violating human rights provisions. In 1916 Liberia’s Supreme Court outlawed trial by ordeal,
generally referred to in Liberia as ‘sassywood’. Irrespective of the law, many forms of trial by ordeal
continue to be practiced throughout the country up to the present day. The perception of many
Liberians is that witchcraft is on the rise due to the ban, and as a result public frustration with the
ban is high. Participants at the National Conference on Enhancing Access to Justice, held in April
2010, are now proposing that the Government distinguish between ‘good sassywood’ and ‘bad
sassywood’, and prohibits only ordeals that inflict physical harm or violate the fundamental legal
rights guaranteed to a criminal defendant during trial. A second step is to convince traditional
leaders to curb the ‘bad sassywood’ on their own, and improve their ability to do so.

Other contributions also describe a focus on the customary reality and attempts to achieve change
from within through guiding and training. Clarke, for instance, describes how in Aceh, UNDP sought
to improve procedural customary law through a research-intensive local process. This process
commenced with a quantitative survey among 800 rural and urban respondents and 60 qualitative
in-depth interviews with key informants. This research provided the basis for the production of a
non-binding manual on best practices for customary dispute resolution procedures. Through
consensus-building, training programs for customary leaders and oversight, the project plans to
build additional consistency, transparency and compliance with human rights standards.

7.2 Linking approach

Institutional linkages between state and customary justice systems can and do take many forms.
Calling the result ‘a hybrid justice system’, as Clark and Stephens propose, highlights the
interconnectedness of institutions and norms with various origins and sources of legitimacy – state
and ‘tradition’. It marks the indivisibility of the resulting justice system and thereby refutes the
constructed dichotomy between state and customary justice systems. In addition, it questions the
one-sided attention to incorporating the strengths of customary justice systems into state justice
systems (while mitigating their weaknesses), but rather advocates for blending the strengths and
mitigating the weaknesses of both customary and formal justice systems.

We have cautioned that making institutional linkages an object of project-type intervention may be
difficult for donors, as they occur squarely within national politics and are largely determined by national
considerations and actors. This is illustrated by Rawls’ analysis of Liberian policy proposals regarding
the interaction among customary and statutory law and justice mechanisms. Rawls demonstrates how
the post-conflict context of the country and the realpolitik of trying to re-establish a government
monopoly over the use of force inform the government participation in the policy debate. Furthermore,
22 the influence of legal scholars and the need to balance the power of government branches and
individuals within them pose constraints on any policy options that take away too much power from the
formal legal system or that might shift power from one part of the government to another.

Desmet, in her discussion of the Airo Pai in the Peruvian Amazon, demonstrates how institutional
linkages can place so many restrictions and conditions on customary forms of administration, dispute
settlement and management of land and natural resources, that in effect there is no real space for
customary institutions and decision-making processes to function. This is done in various ways, such
as through the requirement of compatibility of customary law with national state law and/or
international human rights law; or through the imposition in the law of norms, organizational structures
or decision-making processes that are foreign to the customary legal systems concerned. This case
thus highlights the understudied disempowering effect of conditions and internal conflict rules.77

The innovative approach of incorporating customary dispute settlement systems into the formal
state justice system taken in Eritrea seems to enhance the quality of the customary as well as the
 Chapter 1
state justice system. Andemariam discusses that the latter’s congestion is eased by the cases that
are settled amicably, which can lead to a reduction in the duration and the costs of adjudication of
cases in state courts. In addition, access to the state justice system, at least to the first tier of the
courts system, is significantly enhanced by the fact that the local dispute settler is the same
person as the local state judge. This will bring statutory law and fora closer to the people.
Knowledge and proximity will increase the ‘shadow of state law’ which in turn can have a positive
effect on the quality of customary dispute settlement. As parties now have the opportunity to opt
out of the customary system and seek the protection of the state justice system, they can more
easily reject the pressure of accepting what they regard as an unfair settlement. In fact, all they
have to do is refuse to settle and they will automatically receive a judgment on the basis of
statutory law. Andemariam does not, however, discuss the decisions reached by these local judges,
and additional research is needed to analyze them: are they in accordance with statutory law? Do
they protect vulnerable groups who might be discriminated against under customary law? Are the
parties satisfied with the decision?

Andemariam furthermore suggests that the incorporation of customary dispute settlement into the
state justice system allows for innovations to customary dispute settlement, such as the inclusion
of women ‘judges’, and the infusion of ideas and norms emanating from the state justice system.
Simultaneously, it seems able to preserve some of the positive attributes of customary dispute
settlement, such as proximity, limited financial barriers, local language and basic procedures. By
creating such an inseparable linkage between the forum of dispute settlement and the formal court
of first instance, the Eritrean approach is thus able to overcome a number of the weaknesses of
hybrid justice systems mentioned by Clark and Stephens: that customary justice systems are not
effective when powerful third parties are involved, that they fail to protect the rights and interests of
women, that they sometimes ignore the punitive and deterrent justice objectives, and the fact that
state institutions accidentally or deliberately overlook certain customary cases.

Whereas the dialogue approach demonstrates the importance being given to the role and power of
traditional leaders, administrative linkages between customary administrative structures and
governmental institutions are often neglected by policymakers and practitioners engaging with
customary justice systems. Harper mentions the possibility of making formal recognition of
customary fora conditional upon some measure of self-regulation or change. There is no compelling
reason why this suggestion should only apply to fora for dispute settlement and not also to
administrative institutions. More generally, the regulation or definition of traditional leaders’ powers
and authority and how these should be exercised could be attached to government recognition of
traditional leadership, and similarly to the payment of government salaries. As such they could
provide additional ways to increase oversight. Much could be learned here from public
administration experts, especially those well-versed in development administration78 and
‘customary administration’.79
23
7.3 The elusive oral nature of customary law
Various contributions mention the struggle of judges, policy makers, and development agents to
come to grips with the unwritten character of customary law. Harper mentions that it is particularly
distressing to proponents of the application of customary law in formal courts. In their opinion, if
customary law cases are to be heard at or appealed to statutory courts, customary law needs to be
documented. This is exactly what happened in Liberia, where the documentation of customary law
is one of the main recommendations resulting from the National Conference on Enhancing Access
to Justice. Also here, this proposal was put forward to assist and inform the formal courts in their
application of customary law. But also in other cases, legal development agencies have shown an
interest in the recording of customary law. In Aceh UNDP documented the best practices of
procedural customary law, and Clarke laments that the substantive customary law is not also
clarified. Clark and Stephens mention that the codification and reform of customary rules and
procedures are an integral part of the World Bank’s Strengthening Non-State Justice Systems pilot
project in two areas of Indonesia (West Nusa Tenggara and West Sumatra).
 Harper, Clarke, and Clark/Stephens all warn for the risk of ‘over-formalisation’. Clark and Stephens
caution that in the process of recognizing local institutions, their flexibility to match the process, remedy
and sanction to local realities could be undermined. Clarke highlights that procedural flexibilities that can
contribute to greater substantial justice may be lost. Harper furthermore warns that the principal risk is
that the version of customary law adapted reflects discriminatory attitudes or power imbalances. In such
circumstances, putting customary laws into writing may entrench poor justice for the poor and
marginalised. She therefore points to the need for inclusion of adequate safeguards, such as
participatory processes and mechanisms for popular endorsement of the principles adopted. Both can
be simple ways for all community members to gain better knowledge about customary law and
participate in its evolution.

Ubink’s chapter deals specifically with the intended and unintended consequences of customary
law recordings. She discusses the main historical devices and shows that they have, by and large, all
failed to become guidelines for local dispute settlement. Consequently, these efforts have created a
large gap between living customary law and the recorded versions of customary law. In contrast, the
self-recordings undertaken by the Owambo Traditional Authorities in northern Namibia have
become the new local law, informing customary dispute settlement. They are constantly referred to
in traditional courts and are widely regarded as the normative framework upon which traditional
leaders base their decisions. Obviously, the success of ‘self-statements’ raises questions in relation
to the extent of and manner in which recordings can be stimulated or induced by external actors.
An additional question is whether all customary norms are suitable for recording. For instance one
can imagine that common procedural norms and criminal norms and sanctions are more easily
codified than highly negotiable norms such as those regarding marriage, without locking in one
person or group’s interpretation of local norms (Clark and Stephens).

7.4 Power
The term customary legal empowerment, posited in this chapter, highlights that the distribution of
power plays a vital role in improving the functioning of customary justice systems. Clarke warns that
policy makers too often assume a unified community polity governed by an apolitical community
leadership and that powers of definition and administration at the local level are overlooked by a belief in
a ‘myth of traditionalism’. Monson’s analysis of land tenure in the Solomon Islands is a case in point. She
highlights the intricacy of identifying representative leaders and spokespeople for customary groups.
The acceptance or portrayal of powers of representation and negotiation can profoundly affect power
relations within customary communities. This brings to the fore the need for additional requirements for
enhancing transparency and accountability, and where possible equal participation of all community
members in decision-making or dispute settlement fora. This is especially true when increasing
commodification prompts elite attempts to capture the value of land, as widely reported in literature.

In this regard, we also need to highlight the relevance of historical knowledge. Monson discusses the
24 transformations that have occurred in the Solomon Island’s customary land tenure systems since
colonisation. She shows that when historical processes have disempowered certain segments of
customary communities these imbalances must be addressed if state recognition of rights of
customary groups is to benefit marginalized community members. If not, state recognition will in
fact reify the power of the leaders as well as the marginalization of excluded community members.
This is also one of the main lessons learned from failed attempts to increase tenure security and
production through the formalisation of land rights.80 As processes of disempowerment may have
started long ago, this necessitates an approach that understands contemporary practices as
embedded in history. The first step of Clark and Stephens’ grounded approach to engagement with
customary justice systems includes an understanding of the historical political and policy context of
formal and customary justice systems. The importance of such an historical approach is
underscored by the realization that most encounters with colonial powers as well as missionaries
have significantly altered customary justice systems, and almost exclusively in favor of male elders.
Clarke specifically mentions that “any meaningful engagement with [customary justice systems]
cannot avoid the widespread manipulation of customary law by colonial administration.”
 Chapter 1
Failing to address historical power imbalances can lead to the contradictory result that legal
empowerment of a customary community can simultaneously lead to the disempowerment of
certain groups or individuals within that community. Recognition of customary justice systems can
thus stimulate development as well as have the opposite effect, viz. to entrench inequality.
Everything depends on the content of customary law and, even more so, on who is granted the
power of defining such content.

footnotes 8 See for instance, H. Cobban, ‘The legacies Common Property Rights’ in B Bouckaert
1 There is no generally accepted definition of of collective violence’ (2002) Boston and G. De Geest (eds), Encyclopedia of Law
what constitutes customary law. In general, Review; A. Corey and S. Joireman, and Economics (1999); UNDP, above n 8,
customary systems of justice refer to the ‘Retributive justice: The gacaca courts in 100-103.
Rwanda’ (2004) 103(410) African Affairs; 18 B. Van Rooij, Bringing Justice to the Poor:
types of justice systems that exist at the
local or community level, that have not been B. Oomen, ‘Donor-driven Justice: The case Bottom-Up Legal Development
set up by the state, and that derive their of Rwanda’ (2005) 36(5) Development & Cooperation, Working Paper (2009).
Change; M. Rettig, ‘Truth, justice and 19 L. Nader, ‘The Underside of Conflict
legitimacy from the mores, values and tradi-
tions of the indigenous ethnic group. reconciliation in post-conflict Rwanda’ Management in Africa and Elsewhere’
Although they are often indicated by the (2008) 51(3) The African Studies Review; (2001) 32(1) IDS Bulletin.
S. Power, ‘The two faces of justice’ (2003) 20 Ibid.
term ‘informal’ or ‘non-state’, they do not
The New York Review of Books. 21 UNDP, above n 8, 101.
exist unrelated to, and function independ-
9 H. De Soto, The Mystery of Capital: Why 22 World Bank, Village Justice in Indonesia:
ently from, state legal systems. On the con-
trary, customary and state legal systems Capitalism Triumphs in the West and Fails Case Studies on Access to Justice, Village
define each other in their many interactions. Everywhere Else (2001). Democracy and Governance (2004); Asian
2 B. Oomen, Chiefs in South Africa: Law, 10 Wojkowska, above n 8. Development Bank (ADB), Law and Policy
Power, and Culture in the Post-Apartheid 11 L. Chirayath, C. Sage, and M. Woolcock, Reform at the Asian Development Bank
Era (2005). Customary law and policy reform: Engaging (2001) 66.
3 with the plurality of justice systems, 23 K.S. Amanor, Land, Labour and the Family
T. Murray Li, ‘Articulating Indigenous
Identity in Indonesia: Resource Politics and prepared as a background paper for the in Southern Ghana: a Critique of Land Policy
the Tribal Slot’ (2000) 1 Comparative ‘World Development Report 2006: Equity under Neo-Liberalisation (2001); K.S.
Studies in Society and History 42. and Development’ (2005) 4. Amanor, Global Restructuring and Land
4 M. Galanter and J.K. Krishnan, ‘Debased 12 Poor people’s use of customary justice sys- Rights in Ghana, Nordiska Afrikainstitutet
Informalism: Lok Adalats and Legal tems may reflect the limited access to and Research Report No. 108 (1999); S. Berry,
Rightsin Modern India’ in E.G. Jensen and weakness of the formal justice systems, ‘Chiefs Know Their Boundaries: Essays on
T.C. Heller (eds) Beyond Common rather than an active choice for the former Property, Power, and the Past in Asante,
Knowledge: Empirical Approaches to the based on their satisfaction with them 1896-1996’ in A. Isaacman and J. Allman
Rule of Law (2003). (Swiss Agency for Development and (eds), Social history of Africa (2001); J.
5 R. Sieder (ed), Multiculturalism in latin Cooperation (SDC), Rule of law, justice Carney and M. Watts, ‘Manufacturing
America, Indigenous Rights, Diversity and sector reforms and development dissent: work, gender and the politics of
Democracy (2002); W. Assies, G. van der cooperation concept paper (2008) 3. meaning in a peasant society’ (1990) 60(2)
Haar, and A. Hoekema (eds), The Challenge 13 S. Golub, ‘A House without Foundation’ in T. Africa; E. Daley and M. Hobley, Land:
of Diversity, Indigenous Peoples and Reform Carothers (ed), Promoting the Rule of Law Changing Contexts, Changing
of the State in Latin America (2000). Abroad: In Search of Knowledge, Carnegie Relationships, Changing Rights. Paper for
6 A. Kuper, ‘The Return of the Native’ (2003) Endowment for International Peace the Urban-Rural Change Team, DFID
44(3) Current Anthropology; C. (2006). (2005); K. Juul and C. Lund, Negotiating
Machlachlan, ‘The Recognition of 14 C. Sage and M. Woolcock (eds), The World Property in Africa (2002); Oomen, above n
Aboriginal Customary Law: Pluralism Bank Legal Review: Law, Equity and 3; P.E. Peters, ‘The limits of negotiability:
Beyond the Colonial Paradigm-A review Development (Vol. 2, 2006). Security, equity and class formation in
25
article’ (1998) 37(2) International and 15 C. Anselm Odinkalu, ‘Poor Justice or Africa’s legal systems’ in K. Juul and C.
Comparative Law Quarterly; M.J. Matsuda, Justice for the Poor? A Policy Framework Lund (eds), Negotiating Property in Africa
‘Native Custom and Official Law in Hawaii’ for Reform of Customary and Informal (2002); J.C. Ribot, ‘Local actors, powers
(1998) 3 Internationales Jahrbuch für Justice Systems in Africa’ in C. Sage and M. and accountability in African
Rechtsanthropologie. Woolcock (eds), The World Bank Legal decentralisation: A review of issues’ (2001)
7 See for instance E. Wojkowska, Doing Review: Law, Equity, and Development Georgetown International Environmental
Justice: How Informal Justice Systems Can (2006) 143-44. Law Review; A Whitehead and D. Tsikata,
Contribute, UNDP Oslo Governance Center 16 W. Schärf, Non-state justice systems in ‘Policy discourses on women’s land rights
(2006); UNDP, Programming for Justice: Southern Africa: how should governments in sub-Saharan Africa: The implications of
Access for All. A practitioner’s guide to a respond?, University of Cape Town (2003) the re-turn to the customary’ (2003) 3(1-2)
human rights-based approach to access to 7, 8. Journal of Agrarian Change; P. Woodhouse,
justice (2005); Commission on Legal 17 F. Von Benda-Beckmann, ‘The Multiple ‘African enclosures: A default mode of
Empowerment of the Poor (CLEP), Making Edges of Law: Dealing with Legal Pluralism development’ (2003) 31(10) World
the Law Work for Everyone (Vol. 1, 2008); in Development Practice’ in C. Sage and M. Development.
Department For International Development Woolcock (eds), The World Bank Legal 24 UNDP, above n 8.
UK (DFID), Non-state Justice and Security Review: Law, Equity, and Development 25 Chirayath, Sage, and Woolcock, above n 12.
Systems: DFID Briefing (2004). (2006) 57-58; E. Ostrom, ‘Private and 26 ADB, above n 23, 31-32.
 27 L.S. Khadiagala, ‘The Failure of Popular 48 J.B. Danquah, Gold Coast: Akan Laws and 64 Ibid 35-39.
Justice in Uganda: Local Councils and Customs and the Akim Abuakwa 65 R.H. Aciro-Lakor, ‘Land Rights Information
Women’s Property Rights’ (2001) 32(1) Constitution (1928); I. Schapera, A. Centers in Uganda’ in L. Cotula and P.
Development and Change; Whitehead and Handbook of Tswana Law and Custom: Mathieu (eds), Legal Empowerment in
Tsikata, above n 24. Compiled for the Bechuanaland Practice, Using Legal Tools to Secure Land
28 C. Nyamu-Musembi, Review of experience Protectorate Administration (1938). Rights in Africa (2008) 75; B.Ba, ‘Paralegals
in engaging with ‘non-state’ justice systems 49 A. Claassens, ‘Customary law and zones of as Agents of Legal Empowerment in the
in East Africa, paper commissioned by the chiefly sovereignty: The impact of Banass Area of Mali’ in L. Cotula and P.
Governance Dvision, DFID (UK) (2003) 27. government policy on whose voices prevail Mathieu (eds), Legal Empowerment in
29 De Soto, above n 10. in the making and changing of customary Practice, Using Legal Tools to Secure Land
30 CLEP, above n 8, 26. law’ in A Claassens and B Cousins (eds), Rights in Africa (2008) 58-59.
31 De Soto, above n 10. Land, Power and Custom: Controversies 66 E. Mndeme, ‘Awareness-Raising and Public
32 The vast body of mainly specialist land Generated by South Africa’s Communal Interest Litigation for Mining Communities
tenure related work remains outside the Land Rights Act (2008). in Tanzania’ in L. Cotula and P. Mathieu
scope of this chapter. 50 Llewellyn and Adamson Hoebel, above n 35. (eds), Legal Empowerment in Practice,
33 For an overview of the literature see J Ubink, 51 A.N. Allott, ‘The people as law-makers: Using Legal Tools to Secure Land Rights in
In the Land of the Chiefs, Customary Law, custom, practice, and public opinion as Africa (2008) 97; L. Laurin Barros, ‘Legal
Land Conflicts, and the Role of the State in sources of law in Africa and England’ (1977) Clinics and Participatory Law-making for
Peri-Urban Ghana (2008); Oomen, above n 3. 1 Journal of African Law 21. Indigenous Peoples in the Republic of
34 Following the dispute method, advanced 52 J. Ubink, Traditional authorities in Africa: Congo’ in L. Cotula and P. Mathieu (eds),
first by Llewellyn and Hoebel. See K.N. Resurgence in an era of democratisation Legal Empowerment in Practice, Using
Llewellyn and E. Adamson Hoebel, The (2008) 11. For an elaborate debate about Legal Tools to Secure Land Rights in Africa
Cheyenne Way: Conflict and Case Law in why African states have welcomed the (2008) 122.
Primitive Jurisprudence (1941). resurgence of traditional authorities see P. 67 Mndeme, above n 67, 97.
35 See Holleman’s trouble-less case method. Englebert, ‘Patterns and theories of 68 A.K.P. Kludze, Restatement of African Law,
J.F. Holleman, ‘Trouble-Cases and Trouble- traditional resurgence in tropical Africa’ Ghana. Volume I: Ewe Law of Property
Less Cases in the Study of Customary Law (2002) 118 Mondes en Développement 30; (1973).
and Legal Reform’ (1973) 7(4) Law and G Lutz and W. Linder, Traditional Structures 69 S. Roberts, Restatement of African Law,
Society Review. in Local Governance for Local Development Botswana. Volume I: Tswana Family Law
36 Ibid. (2004). (1972).
37 Ibid. 53 For an overview of this see Ubink, above n 70 N.N. Rubin, ‘The Swazi law of succession: A
38 J.L. Comaroff and S. Roberts, Rules and 53; N. Bako-Arifari, ‘Traditional local restatement’ (1965) 9(2) Journal of African
Processes: The Cultural Logic of Dispute in institutions, social capital and the process Law.
an African Context (1981). of decentralisation: A typology of 71 W. Twining, ‘The restatement of African
39 M. Chanock, ‘Neither Customary Nor Legal: government policies in developing customary law: A comment’ (1963) 1(2)
African Customary Law in an Era of Family countries’ in Working Papers on African The Journal of Modern African Studies.
Law Reform’ (1989) 3(1) International Societies (1999) 5-15; B. Hlatshwayo, 72 S. Golub, ‘Less law and reform, more
Journal of Law and the Family. ‘Harmonizing traditional and elected politics and enforcement: A civil society
40 See for example H. Becker, ‘’New Things structures at the local level: Experiences of approach to integrating rights and
after Independence’: Gender and four Southern African Development development’ in P. Alston and M. Robinson
Traditional Authorities in Postcolonial Community countries’ in F.M. (eds), Human Rights and Development:
Namibia’ (2006) 32(1) Journal of Southern d’Engelbronner-Kolff, M.O. Hinz, and J.L. Towards mutual reinforcement (2005);
Africa Studies; Ubink, above n 34. Sindano (eds), Traditional Authority and ADB, above n 23; USAID, Legal
41 Peters, above n 24, 46-7; J. Ubink, Democracy in Southern Africa (1998). Empowerment of the Poor: From concepts
‘Negotiated or negated? The rhetoric and 54 Bako-Arifari, above n 54, 5-15; Hlatshwayo, to assessments (2007); Commission on
reality of customary tenure in an Ashanti above n 54. Legal Empowerment of the Poor, above n 8;
village in Ghana’ (2008) 2 Africa 78, 264-5; 55 Such linkage can be found, for instance, in L Cotula, Legal Empowerment for Local
Woodhouse, above n 24, 1705-6. Cameroon, see Bako-Arifari, above n 54. Resource Control. Securing local resource
42 Chanock, above n 40. 56
26 Englebert, above n 53. rights within foreign investment projects in
43 D. Fitzpatrick, ‘’Best Practice’ Options for 57 D.I. Ray, ‘Chief-state relations in Ghana - Africa (2007).
the Legal Recognition of Customary Divided sovereignty and legitimacy’ in 73 K. Tuori, ‘Law, Power and Critique’ in K.
Tenure’ (2005) 36(3) Development and E.A.B. Van Rouveroy van Nieuwaal and W. Tuori, Z. Bankowski, and J. Uusitalo (eds),
Change, 457. Zips (eds), Sovereignty, Legitimacy, and Law and Power: Critical and Socio-Legal
44For an explanation of this see B. Van Rooij, Power in West African Societies: essays (1997); Cotula, above n 73.
‘Falü de Weidu, Cong Kongjianshang Jiedu Perspectives from Legal Anthropology 74 ABD, above n 23.
Falü Shibai (Law’s Dimension, (1998). 75 S. Moore, ‘Law and social change: The
Understanding Legal Failure Spatially) 58 See for Togo: E.A.B. Van Rouveroy van semi-autonomous social field as an
(Translated by Yao Yan)’ (2004) 4 Sixiang Nieuwaal, ‘Chiefs and African states: Some appropriate subject of study’ (1973) 7(4)
Zhanxian (Thinking). introductory notes and an extensive Law and Society Review.
45 Ubink, above n 34; J. Ubink, The Quest For bibliography on African chieftaincy’ (1987) 76 The division between the dialogue
Customary Law in African State Courts 25-26 Journal of Legal Pluralism. approach and the linking approach is not
(forthcoming). 59 Ubink, above n 53. absolute. For instance paralegals straddle
46 Ubink, above n 34. 60 Wojkowska, above n 8. this divide: in many projects they are in
47 J. Ubink, ‘Courts and peri-urban practice: 61 Ibid 33. constant dialogue with customary leaders,
Customary land law in Ghana’ (2002- 62 Ibid 38-39. but also facilitate access to state courts.
2004) 22 University of Ghana Law Journal. 63 Ibid 33. 77 See A. Hoekema, (presentation at the con-
 Chapter 1
ference Bringing Justice to the Poor? A 79 See for instance L. Buur and H. Maria Kyed Von Trotha, ‘From administrative to civil
Socio-Legal Look at Bottom-up Law and (eds), State Recognition and chieftaincy: Some problems and prospects
Development, Amsterdam, 7-8 February Democratization in Sub-Saharan Africa: A of African chieftaincy’ (1996) 37-38 Journal of
2001). New Dawn for Traditional Authorities? (2007); Legal Pluralism.
78 M.J. Esman, Management Dimensions of 80 See J. Ubink, A.J. Hoekema, and W.A.
C. Logan, ‘Selected chiefs, elected councillors
Development: Perspectives and Strategies and hybrid democrats: popular perspectives Assies (eds), Legalizing Land Rights: Local
(1991); F.W. Riggs, Administration in on the co-existence of democracy and Practices, State Responses and Tenure
Developing Countries: The Theory of traditional authority’ (2009) 47(1) Journal of Security in Africa, Asia and Latin America
Prismatic Society (1964). Modern African Studies; Ubink, above n 53; T. (2009).

27
 Chapter 2
CHAPTER 2
Engaging with Customary Justice
Systems
2
Erica Harper*

Introduction
Any discussion of the features of, and the opportunities and constraints inherent in, customary
justice systems raises important questions about the role that they should play in the programming
of national governments, international organizations and non-governmental organizations (NGOs)
operating in development, post-conflict or post-natural disaster contexts. Principally, should aid
agencies engage with customary justice systems when they operate outside the formal legal sector
and may fail to uphold accepted international human rights and criminal justice standards, even
though they may be the only functional or preferred mechanism for dispute resolution? If the
answer is yes, what are the aims of and principles underpinning such engagement? Should attention
focus on enhancing the protection of marginalized groups, either by eliminating the negative
aspects of customary justice or strengthening the links between the formal and informal justice
sectors? Alternatively, should the aim be to modify our thinking with respect to the customary
justice sector; to approach it less as a problem that needs to be resolved and instead as an integral
part of the solution to providing access to fair and equitable justice for all — a system that needs to
be supported and strengthened in all its aspects?

Although such questions were first posed only in recent years, a rich policy debate has evolved. The
following chapter provides insight into this discourse, taking into account policy and donor
imperatives, the extent to which engagement with customary justice aligns with dominant models
of justice sector reform, and the role that customary justice systems might play in the achievement
of other development objectives. A thorough understanding of these factors should guide how the
rule of law community approaches programming in plural contexts, including by identifying some of
the challenges that need to be overcome and by situating customary law within a framework that
takes into account the socio-economic, cultural and security context in which community-level
dispute resolution takes place.

29

* Dr Erica Harper is a Senior Rule of Advisor at the International Development Law Organization. Dr Harper has a
Bachelor of Commerce and Bachelor of Laws (honours Macquarie University, Australia) and a PhD (University of
Melbourne, Australia). Her areas of specialization include post-conflict judicial rehabilitation; international criminal law
and transitional justice; and alternative and customary dispute resolution. Prior to joining IDLO, Dr Harper worked at
the United Nations High Commissioner for Refugees (Geneva, Timor Leste and the Philippines) and various field-
based NGOs. The ideas expressed in this chapter are drawn from a Practitioner’s Manual on Programming for
Customary Justice (IDLO, 2011); the author wishes to thank the various scholars and practitioners who have
contributed to the development of these works, in particular Chris Morris, Deborah Isser, Johanna Cunningham,
Janine Ubink, Thomas McInerney and Ilaria Bottigliero.
 1. Mainstream development theory and ‘rule of law orthodoxy’

Dubbed the ‘rule of law orthodoxy’, it is well established that the international community concentrates
its legal development activities on the reform of formal justice sector institutions: the courts, legislature,
police and correctional facilities.1 And while legal assistance programs are expanding rapidly, assistance
to customary dispute resolution processes has been largely neglected by UN agencies as well as under
other multi-lateral and bi-lateral programs.2 There are three primary reasons for this, as discussed below.

i) Institutionalizing poor justice for the poor

Strengthening customary justice systems may be deemed inconsistent with broader rule of law goals.
Some argue that high usage of customary processes is symptomatic of poor access to the formal
system, as opposed to a normative or ethical preference for customary justice.3 It follows that
interventions should focus on expanding the reach of courts and enhancing their efficiency. Efforts to
reform or strengthen customary justice systems, by contrast, will distract and divert limited resources
away from the development of the state system, while at the same time institutionalizing sub-standard
justice for the poor.4 The result can be “a two-track system that reinforces … unequal access to legal
justice” whereby courts are reserved for the wealthy and the victims of serious crime, while the poor
and victims of minor cases are forced to accept ‘secondary’ forms of justice.5

ii) Incompatibility with programming approaches of development agencies

Supporting or working through customary legal systems can be incompatible with the programming
approach of some development agencies. Such interventions may be considered antiquated or
unprincipled by lawyers schooled in more formalistic settings: work that falls more in the domain of
anthropologists and social scientists than legal practitioners. Programs involving customary
processes may even lie outside of some organizations’ terms of reference. As Isser explains, “… most
multilateral and bilateral international actors are mandated to work through state bodies.
Customary justice systems which function outside of, or as an alternative to, the state, are often
seen as incompatible with this mission”.6

Other agencies find it unacceptable to engage with systems that tolerate discriminatory treatment
or fail to uphold international legal standards. For example, the United Kingdom Department for
International Development’s (DFID) Policy on Non-State Justice and Security Systems (NSJS)
states that working with customary systems “is not applicable in situations where NSJS violate
basic human rights such that donor engagement is both inappropriate and unlikely to achieve
reform”.7 Beyond the question of whether to engage at all, that aspects of customary justice
processes may be inconsistent with international standards has implications for the question of
‘how’ to engage. As will be discussed, this presents a particular dilemma for United Nations
agencies, which are required to operate within a normative framework of human rights, international
law and internationally accepted criminal justice standards.8
30
iii) Interface with the formal legal system
Finally, some argue that strengthening the customary system can result in a competing and
overlapping set of laws which, while giving choice, can “obstruct claim-holders’ access to justice and
impede effective handling of grievances”.9 This may create confusion or promote instability.10 It can
also encourage forum shopping and, in turn, facilitate manipulation of the system by more powerful,
wealthy or more informed disputants.11 Pluralism offers such groups the option of ignoring
customary norms and asserting their right to refer disputes to the formal legal system in an attempt
to avoid traditional responsibilities, to ‘get a better deal’ or when seeking revenge.

2. The case for engagement with customary justice systems

Despite the arguments cautioning a partnership with customary justice systems, there is growing
support for the position that, while there are certainly challenges to be overcome, engagement with
 Chapter 2
them is an essential ingredient for ensuring access to justice for disadvantaged populations, and
should be prioritized by development agencies implementing programs of justice sector assistance
or reform.

2.1 Lack of appropriate options in some contexts

In certain contexts, the customary justice system may be the only or most strategic entry point for
enhancing access to justice. Particularly in post-conflict and post-natural disaster situations, state
courts may be non-operational, or the delivery of services stymied by a lack of resources,
inefficiency and/or case back-logs. In the immediate aftermath of the 2004 Indian Ocean tsunami,
for example, the only functioning dispute resolution apparatus in Aceh, Indonesia was the
customary system. Even after courts re-opened, they were incapable of processing the huge
number of inheritance, property and guardianship cases that were generated. As such,
strengthening and utilizing customary fora was deemed the most cost-effective means of resolving
small-scale disputes while not congesting the courts and correctional facilities.

In other situations, engagement with the state justice system might be considered inappropriate, for
example, where the state is a known conspirator in the perpetration of rights violations, or unlikely
to yield effective results, such as where corruption is endemic or there is little or no state support for
reform. There may also be scope for reform at the customary level that does not exist within the
formal justice sector. As will be discussed, the dynamic nature of customary justice systems allows
them to grow and adapt to social and economic imperatives in interesting ways, opening up fertile
ground for certain types of normative reforms.12

2.2 Heightening protections for marginalized groups

A further basis for engagement is that customary justice systems are simply too important to
ignore. As the cornerstone of dispute resolution for the poor and disadvantaged in developing
countries,13 how these mechanisms operate has a critical impact on livelihoods, security and order.
Moreover, the ‘bread and butter’ work of customary fora — disputes involving access to land and
productive resources, property, marriage, succession, and criminal offences such as rape — have
important social and economic implications for those involved. Where customary justice is fair and
rights respecting, it can support the marginalized and promote stability; where it is discriminatory
and nepotistic, the results can be inequality, disenfranchisement and heightened potential for
conflict.14

A related rationale concerns the human rights protections offered to users of customary justice
systems. Since customary fora operate outside of state regulation and without formal accountability
mechanisms, users are more vulnerable to nepotism, discrimination and sanctions that violate
accepted human rights standards. It is well established that women and minority groups are among
those most disadvantaged and least protected under customary dispute resolution. Further, those
whose livelihoods are dependent upon customary land holdings or whose marital rights derive from 31
a customary union, have little or no recourse or state protection. Ignoring these realities, or (worse)
using them as grounds for non-involvement will not correct the violations that can occur through the
operation of customary legal systems. Instead, it is the number of people who have no choice but to
rely upon such systems that makes the case for active involvement compelling.15

2.3 Delivering access to justice for all

Perhaps the most salient argument presented in support of engagement is that if the objective is to
make justice accessible for all, this is unlikely to be achieved in the short-term without customary
justice systems forming part of the solution. In most developing countries, the state cannot provide
accessible justice services to the entire population, and nor is it the most efficient provider of such
services. In the context of competing development imperatives, expanding the reach of state courts
may have little economic appeal vis-à-vis making the best use of existing grassroots mechanisms.16
Further, a decentralization of legal services to, inter alia, customary systems may be a cost-effective
means of reaching more beneficiaries and heightening the efficiency of the formal sector.17
 The limitations of state justice systems can be contrasted to the scope of work that customary
justice systems can and do handle.18 While noting that precise calculations are difficult, Golub
purports that “one can reasonably conclude that perhaps 90 percent or more of the law-orientated
problems involving the poor are handled outside of the courts in much of the developing world”.19
Whether this is voluntary or due to limited access to the state system is largely irrelevant. A large
body of justice is being meted out through customary systems, with the implication that far-
reaching reforms can be made through engagement with such fora. When seen in this light,
enhanced access to the customary system becomes a tool for women, the poor, the marginalized
and other vulnerable groups to uphold their rights.

2.4 Strengthening the rule of law

Finally, even if they are not the object of reform, expanding approaches to include customary
systems may have positive spillover effects. Effective formal justice sector reform, for example, may
to some extent lie in understanding what occurs at the customary level. Customary justice systems
exhibit remarkable resilience, outlasting changes in government, conflict, natural disaster and state-
based attempts to abolish them.20 They are also popular. Customary processes are often perceived
as fair, cheap and efficient, are steeped in local legitimacy and authority, and respond to the social,
legal and material needs of the populace in a way that the formal system is unable to do. While
neither resilience nor popularity is a valid ground for engagement per se (asserted preference does
not necessarily indicate that customary outcomes are beneficial for all users), such features
demonstrate a level of effectiveness and a connection to the people that use them. Understanding
how and why this is the case may provide some of the answers to developing a rule of law culture
and making the formal justice system more attractive.

3. ‘Fix it’ approaches to engaging with customary justice systems

The above discussion reveals a growing consensus that despite some obvious challenges, excluding
customary justice systems from reform strategies is not the best approach for enhancing access to
justice and protecting the rights of vulnerable groups. Appeal is growing for strategies that aim to
improve the quality of outcomes resolved at the community level by building on the positive aspects
of customary systems — particularly their reach and popularity — and attempting to reform
negative practices.

But partnering with customary justice systems raises new and important concerns. Principally,
how can a decentralization of legal services be supported while ensuring that this does not equate
to a formalization of inequitable or rights-abrogating practices that occur at the customary level?21
A further concern relates to how programming objectives can best be achieved given the
normative frameworks within which many international development organizations operate. As
32 discussed, United Nations agencies (and others) are obligated to uphold human rights in all
aspects of their work. At the same time, it is clear that where customary norms do not align with
international human rights standards, there are often complex rationales in play, touching upon
issues such as culture, socio-economics and security. In such contexts, approaches that
concentrate on bringing customary systems into alignment with international norms might be, at
best, ineffective and, at worst, harmful.

A review of the programmatic landscape over the past decade suggests that the combination of the
above concerns has skewed programming towards interventions that aim to ‘fix’ customary justice
systems and better align them with international standards and/or state models of justice. Such
approaches might include efforts to enhance participation in customary decision-making, eliminate
negative customary practices, harmonize customary and statutory laws, and/or link customary and
state adjudicatory fora. As will be discussed below, there are certain challenges inherent in such
approaches. Above all, 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
 Chapter 2
customary justice that make such systems workable and responsive to user needs and
expectations.

3.1 Expanding participation in customary decision-making

One means of promoting downward accountability and enhancing the protection of marginalized
groups is to promote their participation in dispute resolution processes. This might involve vesting
such groups with leadership responsibilities, or expanding the dispute resolution ‘circle’ to include
representatives of women, youths or other traditionally excluded groups. Proponents argue that
female interpretation and application of customary law is likely to better factor in the needs of, and
protections required by, all groups and that youth may be more inclined to challenge traditional
norms and embrace modern notions of human rights and good governance.22

The principal drawback of this approach is that power-holders are unlikely to give up their
monopoly over dispute resolution easily; devolution of authority usually requires external
intervention. To this end, some governments have introduced legislation requiring that
community leaders be democratically elected. In certain cases, this has been seen as
unwelcomed interference in local governance, and elections have been boycotted. Another
potential outcome is that elections do not alter the profile of the leadership, either due to local-
level political interference in the election or the strength of support for the existing power
hierarchy.23 An alternative approach is the stipulation of quotas for participation by certain
groups. It is not necessarily the case, however, that appointment is followed by meaningful
participation; those selected are sometimes chosen specifically because they are unlikely to
question dominate norms; in other cases, prevailing social attitudes constrain appointees’
freedom to act independently.24 This should not be all that surprising. Customary justice systems
function on the basis that decision-makers are regarded as legitimate; it is their social authority
that ensures that disputants participate, enter into negotiated agreements and abide by
outcomes reached. Where leaders lack legitimacy, the integrity of the system may be
compromised.25

While there are certainly examples of where customary mechanisms have been expanded to better
reflect the composition of society, it would appear that coercive change to leadership structures is
rarely an effective means of promoting the substantive participation of marginalized groups. How to
get local leaders interested in diluting or devolving their authority is a key challenge. Prompting open
debate at the local level on issues of participation may be one entry point; when election or
appointment is the strategy adopted, incremental reforms, such as installing women and youths in
advisory roles rather than as decision-makers as a first step, may have greater impact over the
longer term.26

3.2 Codification of customary law

The codification of customary law is proposed by some as a means of enhancing predictability in 33
decision-making and reducing the flexibility and negotiability inherent in customary law. Codification
is particularly appealing to proponents of harmonizing or linking formal and customary systems; if
customary law cases are to be heard at or appealed to statutory courts, there is a strong argument
that applicable norms need to be reduced to written form.

Projects of codification, however, have had limited success. Customary laws are less rule
frameworks than sets of principles tailored to specific contexts and malleable in changing
circumstances. As such, they do not lend themselves easily to codification. Moreover, the
effectiveness of customary systems is premised upon their capacity to facilitate negotiated
solutions, a feature that may be extinguished through codification.27

Codification also poses practical difficulties. Customary systems are dynamic and may exhibit wide
variation over small areas. Written codes may quickly become obsolete and risk locking diverse
groups into a single interpretation of norms.28 Even if codification could capture one system
 adequately, customary law is almost always internally contested. Codification thus raises the
question of whose version of customary law is to be adopted. The obvious risk is that the norms
presented discriminate against weaker groups and overlook important needs.29

Finally, codification may have less than anticipated impact in areas where literacy is low. Codified
rule sets may even be used as a tool to discriminate against those groups least likely to have
literacy skills (also those with the highest vulnerability), namely women, the poor and the under-
educated.

An increasingly popular alternative to codification is self-statements or ascertainments of

customary law. These are written documents that describe (but usually not prescribe) key
customary law principles.30 They are produced and used by communities to guide dispute
resolution; as rules are not fixed, such processes avoid a crystallization of laws and the associated
loss in flexibility. While there is no set procedure for ascertainments, a main feature is that processes
are participatory and that principles are adopted with a level of group consensus.

In summary, codification may be a suitable means of enhancing predictability and protections in

specific contexts, such as where there is a relationship between customary and statutory courts,
where large population shifts have brought unfamiliar groups into close proximity, and where
communities are no longer homogenous, and traditional means of communicating knowledge have
broken down.31 Codification may also be successful in contexts where customary rules lend
themselves naturally to codification, for example where rules are not disputed and have remained
constant over long periods. In other situations, self-recording may be more appropriate. Under
either method, the principal risk is that the version of customary law adopted – whether it is
popularly accepted or contested – reflects discriminatory attitudes or power imbalances. In such
circumstances, codification or ascertainment may formalize such norms, entrenching poor justice
for the poor and marginalized. However, where adequate safeguards are in place, such as
participatory processes and mechanisms for endorsement of the principles adopted, both can be
simple ways for all community members to gain better knowledge about customary law and
participate in its evolution.

3.3 Eliminating harmful customary practices

A common approach for eliminating negative customary norms is using legislation to either
proscribe certain practices or introduce specific rights for vulnerable groups. There are noteworthy
cases where legislative pronouncements have impacted on norms at the customary level. However,
legislation may have less than the desired impact where there are barriers to accessing the formal
justice system, where customary norms are deeply entrenched, or where ‘negative’ customary
practices have important social, economic or security rationales. Similarly, when legislation is
designed to suppress a practice that is attached to a widely held belief set, the only result may be to
34 drive the norm underground, where less regulation leaves marginalized groups even more
vulnerable to exploitation and unsatisfactory outcomes.

A further issue that should be considered is that, where features of customary justice are said to
violate human rights and criminal justice standards, these may be grounded in context-specific
rationales. Two practices — customary solutions that violate the rights of women and collective
responsibility — can be used to illustrate this argument. In many developing country contexts, rape
and widowhood have specific social and economic implications for the women involved. Entrenched
discriminatory attitudes may dictate that rape victims are unable to marry, forcing them to rely on
their families or the wider community for social, livelihoods and financial protection. Such women,
and any children involved, are more vulnerable to poverty and homelessness, and often suffer lifelong
discrimination. In this context, a common solution to crimes of rape is for the victim to marry the
perpetrator. Although this clearly abrogates the victim’s right to a remedy and freedom of marriage
(and arguably to protection from treatment that is cruel, inhumane or degrading), marriage may
provide the victim with a degree of social and economic security that she would not otherwise enjoy.
 Chapter 2
A further example relates to the limited inheritance and property ownership rights granted to
women under some customary systems. While such rules are clearly discriminatory, there may
be security-related or social rationale for keeping land within male lineages. In Somalia, the size
and strength of the clan is the basic unit of security. Key to the clan’s strength is its wealth,
including property holdings. As women may marry outside of their own tribe (or may be traded
as part of compensation agreements), it is considered contrary to clan interests to permit them
to own or inherit property, as to do so would dilute the group’s collective strength and defensive
power.32

This is not to suggest that such practices are justifiable or should be sustained, simply that in
situations of generalized discrimination, poverty and limited (or non-existent) social security, the
importance of basic safeguards including financial, social and security protections, must be taken
into account when developing customary reform strategies.

The limitations of the above approaches to reforming customary law have led development
practitioners to experiment with a range of bottom-up strategies, including exploring ways to
promote self-regulation or internally-generated reforms. Two characteristics of many customary
justice systems suggest that such approaches are promising. First, their dynamism and flexibility:
while this is often presented as an entry point for discrimination and abuse, such fluidity also makes
customary systems capable of modernization and change, thus opening up inroads for progressive
reforms.33 Second, while customary leaders are often among those who benefit from discriminatory
norms and maintenance of the status quo, they also have incentives to be responsive to changing
community expectations as their ability to maintain order and social harmony is closely linked to
their authority.34 Whether this makes them the gatekeepers to rights protection, or potential agents
of reform, they are clearly important partners in any strategy to improve the quality of customary
adjudication. Building upon this, the next section discusses a range of approaches that aim to
support the legal empowerment of users and encourage the self-reform of customary justice
systems.

4. Expanding access to alternative dispute resolution fora

Where there are impediments to accessing just and equitable solutions through customary fora, an
alternate solution to reforming customary systems directly is to support the creation of new
institutions that offer other forms of dispute resolution. Such institutions operate in parallel to
customary justice systems, complementing or supplementing them, with a view to promoting
access to justice and improving its operation through heightened competition. A related approach is
to expand the reach of the formal justice sector and to make it more accessible and attractive to
users of the customary justice, while again creating indirect pressure for internal reform. Such
alternate mediating institutions may be created by communities themselves, NGOs or the state, as 35
explored below.

4.1 NGO-led alternative dispute resolution

Dispute resolution services provided by NGOs is a recent but growing response to access to justice
vacuums caused when formal and/or customary justice systems are unsatisfactory or ineffective.
Such fora, sometimes labeled ‘popular justice mechanisms’, can take a variety of forms but are often
grafted upon customary dispute resolution methodologies and then adjusted to offer enhanced
procedural and rights guarantees. They are generally free, and decisions are usually non-binding.
Staff may be local or external to the communities in which they operate, but receive training, inter
alia, in mediation, legal skills, human rights and gender equality. Services provided might include
investigation, mediation, post-mediation monitoring of the outcome as well as complementary
functions such as community legal education and dispute resolution training for community
leaders. Where most effective, NGOs are linked to legal aid services that can assist with disputes that
are either unsuitable for, or cannot be resolved through, mediation.
 Box 1
Bangladesh: Mardaripur Case study
In response to the difficulties faced by poor and marginalized groups accessing the formal legal
system, Madaripur, a Bangladeshi NGO, developed a multi-tiered structure of village mediation
committees. The methodology employed is an adaptation on Bangladeshi customary mediation
but modified to eliminate some of the negative practices characteristic of traditional ‘shalish’ and
to better address the needs of users. In each village where the program operates, an 8-10 person
Mediation Committee, reflecting the gender and ethnic composition of the community, is
selected in consultation with local power-holders and elites (such as elected officials, teachers
and other socially influential persons). The Committees meet twice a month to mediate village
disputes, free of charge. Oversight is provided by a mediation worker trained by Madaripur from
the Union-level Central Mediation Committee.

Criminal cases, including rape and murder, as well as complex land cases are not mediated, but
are referred to the formal legal system; Madaripur provides assistance through its legal aid
division where required. Where mediation is successful, the agreement is recorded and signed by
the parties. If mediation is not successful, the dispute is referred to a higher level in the Madaripur
structure for further mediation. Disputes that still cannot be resolved are referred to the courts,
again with legal aid assistance if required. Madaripur mediates approximately 5,000 disputes
annually across 487 committees. Of these disputes, between 66 and 88 percent are said to be
successfully settled without going to court. Although mediation is voluntary and decisions are not
enforceable, rates of compliance are also high. There may be several reasons for this, such as the
perceptions of officialdom and authority attached to NGO-mediated and/or written decisions,,
post-agreement monitoring of the decision; or, most likely, parties’ knowledge that if an
agreement is not reached or abided by, the complainant has a very real option of litigation.35

Initiatives like Madaripur represent an innovative model for resolving disputes in a way that is
culturally appealing but offers better protection to vulnerable groups by eliminating the corruption
and discrimination inherent in the customary and (sometimes) formal justice system. This model,
however, is not free from complication. NGO-facilitated mediation, unlike most customary systems,
is rarely financially sustainable; operations require either financial support or a fee schedule. NGO
mediation also does not possess all of the tools of customary justice, such as the social authority of
its leadership, participation and compliance driven by social pressure, and the facility to re-establish
social harmony through its decision-making.

A further challenge is how to balance the need to distinguish the justice provided from that which is
available through customary fora, with the need for the forum to establish itself as a legitimate and
36 credible option for disputants. Phrased another way: while the objective of NGO-facilitated
mediation is to better protect marginalized groups from discrimination and corruption, a forum that
offers solutions that are too dissimilar from social and gender norms risks being rejected or
boycotted.36 Madaripur’s response to this was a subtle and progressive realization of norm
modification; modalities included providing education to local mediators and disputants, the
gradual introduction of women mediators, and encouraging female participation in dispute
resolution, both as committee members and as disputants. Processes were still male dominated,
but advancements were made. Women mediators mitigated some of the discrimination against
women through both their interpretation of customary law, and the existence of Madaripur provided
women with more options for upholding their rights.37 While this may seem like a logical approach,
where this balance is struck is not always clear and may involve some trial and error; moreover, such
change models are slow and significant developments are unlikely to be seen for many years.

The NGO-mediation model also raises some questions. Mediation led by Madaripur appeared to
enjoy high rates of both obtaining a solution and compliance. Given that mediation was voluntary
 Chapter 2
and that respondent parties may have been able to get a more advantageous solution through
traditional shalish (where they could have taken advantage of discriminatory gender norms, power
biases and corrupt practices), it is reasonable to connect this to the threat of litigation. On the one
hand, where the NGO offering the mediation service upholds human rights standards, provides
procedural protections and processes are not affected by elite capture, this could be seen as an
effective means of leveling the playing field. On the other, in contexts where the formal justice
system is expensive, intimidating and/or corrupt — a place to be avoided by both the innocent and
the guilty — the threat of litigation enjoyed by the NGO-assisted party may be seen as giving them
an unfair advantage over their opponent.38

4.2 Community-based paralegals

Paralegals are laypersons that have legal literacy skills; they usually have knowledge of substantive
laws as well as skills in how to negotiate the court system.39 Their function is to provide a bridge
between the formal legal system and society, thus demystifying the law and making justice more
accessible.40 Paralegals can offer a range of legal services that do not necessarily need to be
provided by a lawyer, such as: advice on whether a rights violation has occurred; what are an
individual’s legal rights in a particular situation; how to access government or NGO legal aid; and
how to file a claim in court or at an administrative tribunal. In some contexts they also provide
quasi- or complementary legal services such as mediation, community legal education or
advocacy work.

In most cases, paralegals operate out of city-based legal aid centers, and thus are less accessible for
community members in rural areas. Recently, however, the notion of community-based paralegals
has increased in popularity. They not only provide a means of accessing the formal justice system,
but may also enhance the quality of justice at the customary level, either indirectly by increasing
competition in the provision of legal services, or directly by working in partnership with customary
leaders in the resolution of disputes.

There are many advantages of using paralegals in this manner, as described by Maru. They are a
cost- effective means of providing a variety of legal services to communities that cannot otherwise
access the state system. In contrast to lawyers, they can be quickly and easily trained in large groups
and do not need to have a pre-existing or specific skills set.41 The paralegal approach may be
particularly suited to rural community contexts. First, paralegals sit between the customary and
formal systems, using the advantages of both strategically and according to the situation; they are
not limited to an adversarial approach, but can adopt a flexible and creative approach to solving
problems using a range of tools including mediation, conciliation or adjudication at a court. They can
also integrate reconciliation practices into dispute resolution and evoke the centrality of community
harmony. Second, since they are community-based, they are familiar with community power-
holdings and dynamics, may be more accessible and approachable, and better understand the
backgrounds of disputes. Such insights, combined with their flexibility, make them well placed to 37
craft workable, socially legitimate and enforceable solutions. Third, where paralegals are connected
to a legal aid service, they may be able to overcome problems of elite capture in the customary
system since they have the option of litigation and high-level advocacy.42

The biggest challenge associated with paralegal models is how to obtain the support of customary
justice leaders. To have impact, paralegals must represent a source of competition and threaten
leaders’ monopoly on judicial power; however, where this potential encroachment on power is too
large, leaders may obstruct their work completely. One approach is to vest paralegals with wider
functions. For example, it might be better to ‘market’ paralegals as custodians of information on all
issues to do with state administration, such as benefits and services that communities might profit
from, including those of a legal nature. An alternative approach is to bond paralegals to community
leaders as assistants; paralegals might collect background information on a dispute, organize
dispute resolution sessions, make records of proceedings, or provide advice to the customary
leader on issues such as statutory law or the role of police. Finally, where customary law leaders are
 open to paralegals working independently, for example, undertaking mediation or advising
community members about their rights, their work might be overseen by a board of community
members or leaders.

4.3 Enhancing access to the formal justice system

A final strategy for presenting communities with alternatives to customary justice is to enhance
access to the formal justice system, either by expanding the reach of state justice services or by
modifying court processes to make them more appealing to customary disputants. While the
principal objective is to enhance local communities’ understanding of and access to state justice, a
secondary benefit may be improved customary processes as a result of enhanced competition43
and the state acting as a check and balance on customary leaders.

The most common means of expanding state justice services to reach the community level is
through legal aid services and the establishment of mobile courts. Mobile courts are staffed by court
judges, often assisted by translators, who travel periodically to communities to overcome cost and
distance factors that otherwise make the court system inaccessible. Judges can deal with a range of
issues including resolving criminal and civil cases, or performing civil services such as marriages
and the issuance of personal documentation. A closely related measure is to provide incentives to
judges and magistrates to work in rural areas, including through financial and career advancement
possibilities. A final entry point is to appoint Justices of the Peace within communities, or who
service a selection of communities. Justices of the Peace are usually lay magistrates who are
authorized to mediate or conciliate disputes, and have limited jurisdiction to adjudicate minor
criminal and civil matters.

Steps to make the formal justice sector more appealing to customary justice users might include
reducing and simplifying filing procedures, streamlining case processing to reduce the number of
times that disputants need to appear in court, eliminating or reducing case filing costs (particularly
for indigent persons), providing free legal aid services, employing translators or multilingual court
staff, and allowing cases to be heard in local dialects. Policy-makers also might explore importing
modalities, principles or features of customary justice into the operation of state courts with a view
to making them more user-friendly and to promote decision-making that is more likely to address
the needs and perspectives of parties. Examples include:

■ the use of conciliatory techniques aimed at mediated rather than adjudicated outcomes;
■ facilitating the greater participation of customary law actors in court proceedings such as by
inviting them to provide their views on appropriate sanctions (particularly as to punishments
already or likely to be applied at the customary level), the background to the dispute, or expert
advice on customary law;
■ promoting greater procedural flexibility, such as taking into account customary rules of
38 evidence;
■ promoting non-custodial and restorative sanctions consistent with customary law norms such
as compensation, restitution, community service work, and sentencing that takes into account
the future relationship between the parties and punishments already or likely to be applied at the
community level; and
■ training magistrates in customary law norms and principles to encourage judgments that better
respond to community needs and conceptions of justice, and in laws that allow them to take
customary or social context into account.

4.4 Key challenges and lessons learned

First, when assessing the value added of expanding the number of dispute resolution fora, the
secondary implications this might have for the effectiveness of customary justice and broader
questions of access to justice must be assessed and taken into account. Having multiple pathways
to justice can weaken or corrupt the internal integrity of the customary justice system, the
 Chapter 2
workability of which is dependent on its social power to command user participation and respect.
When newly introduced ‘options’ undermine the functionality of the customary system, but are not
strong enough or sufficiently accessible to replace it, access to justice may be reduced; if this
creates a situation where no reliable justice options are available, the results can be increased
vigilantism, violence and criminality.44

A second challenge relates to the pace and nature of change that can be expected to flow from such
‘alternatives’. The options described in this chapter for vesting customary justice users with more
choice as to where they resolve disputes each require that they voluntarily step outside of the more
familiar and culturally dominant customary ‘sphere’. As will be discussed below, while complainants
often have incentives to make use of alternate fora (as they offer greater protections), they may
confront various social barriers when doing so. Respondents on the other hand, have fewer
incentives to voluntarily submit themselves to such mechanisms, particularly where they may be
less able to use their gender, power or wealth to engineer outcomes in their favor. In many cases, it
is only the threat of litigation that makes such models workable.

Given these complex social and vested interests in play, the approaches adopted and outcomes
delivered by alternate justice providers generally need to be not too far removed from customary
norms. As described in the Madaripur case study, in order to encourage disputants to reject
traditional shalish and submit their disputes to village mediation committees, decisions and
modalities need to offer sufficiently better protections, while not representing too radical a shift in
social convention that Committees would be ‘pariahed’. The point to be emphasized is that for
alternative dispute resolution fora to be voluntarily accepted and utilized, what they offer in terms of
procedural protections and outcomes will generally be quite measured. Normative reform will be
slow, and in the near term, those applying or supporting such reforms may need to accept that
some level of harm will continue. Such a balancing of ‘less harm’ against ‘no harm’ may not be a
strategy that all donors or policy-makers can endorse.

A final challenge to be addressed is the reality that customary leaders often hold a monopoly over
dispute resolution and have a strong vested interest for holding onto such power. The introduction
of alternative pathways to justice may thus be strongly resisted; leaders may attempt to dissuade or
obstruct users from referring matters to either NGOs or the formal legal system. While this is often
for self-interested reasons, for example, to preserve their capacity to extort bribes, there may also
be strong social factors in play. In Indonesia, leaders actively discourage community members from
approaching the formal justice system because this is perceived as a sign that they are unable to
maintain order in their villages, weakening their credibility as leaders.45

Regardless of the underlying rationale, users of customary justice systems will generally need to
weigh up the benefits of approaching an alternate forum with the potential negative consequences.
These might include the risk that an offended customary law leader may discriminate against them 39
in subsequent decision, or that, if the dispute is ultimately resolved customarily, they might receive
a larger penalty. Disputants who leave the customary realm may also receive social sanctions for
disregarding norms of community harmony and cohesion.

Such resistance by customary leaders and the ramifications or barriers disputants may face in
accessing alternate fora must be thoroughly understood and integrated into any reform strategy.
In particular, strategies aimed at gaining the acceptance or support of customary justice leaders
should run in parallel to any intervention. Bonding paralegals to customary leaders as assistants,
or ‘marketing’ them as holders of a range of useful skills and information about the state system,
including legal information, are examples of entry points that could also be applied to NGOs
offering mediation services. In situations where resistance cannot be completely overcome,
opposition may be mollified by involving leaders in decision-making or vesting them with oversight
responsibilities.
 5. Conclusions

This chapter began by exposing some of the difficulties associated with mainstream ‘top-down’
approaches to reforming customary justice systems. Such strategies tend to focus on eliminating
negative customary practices and align customary systems with international standards and/or
state models of justice. A key issue is that the customary and state justice systems greatly differ in
aims and raisons d’être (reasons for existence). Efforts to make customary justice better resemble
the state are often limited as they are predicted on assumptions that, when applied to customary
models, compromise their internal logic. Interventions that are devised and led by customary actors
and users themselves, it was argued, are more likely to be effective and sustainable.

The chapter then discussed a new and sparsely analyzed approach for enhancing the
empowerment and access to justice of customary justice users: the introduction of community-
level alternatives to customary dispute resolution. Perhaps the most interesting aspect of this
approach is that it has the potential to enhance access to justice in a number of different ways:
disputants may take their disputes to mediating institutions that offer better procedural and rights
protection; these new institutions could work in complement to customary fora, particularly where
there is an overflow of cases or customary leaders are badly placed or uninterested in resolving
certain types of disputes; or the establishment of new fora might create a competition in the
provision of dispute resolution services, hence motivating internal reforms in customary legal
processes.

This is by no means the only approach for facilitating the reform of customary systems. Other
strategies might include linking self-regulation to formal recognition of customary fora. This has
occurred in some cases where customary groups have defined their objectives, functions, structure
and jurisdiction in the form of regulations, sought out human rights training or lobbied for state
endorsement.46 The conditions supporting or prompting such actions need to be better
understood, as well as other steps that might encourage or provide incentives for the better
observance of procedural and human rights protections in adjudication processes.

Another approach is to look within customary law and draw on positive norms as a basis for change.
Somali customary law, for example, contains basic behavioral prescriptions that apply to all Somalis
(xeer dhagan) including the protection of certain social groups: women, children, the elderly and
guests;47 in Afghanistan, Pashtunwali custom mandates chivalry, hospitality and personal integrity.48
Such norms could arguably be better exploited with a view to enhancing the protection of vulnerable
groups. It may also be possible to draw upon other sources of social influence to prevent harmful
customary practices. In Afghanistan, the practice of forced marriage (including the customary
practice of bad) has been condemned by some religious leaders as in violation of Islamic shari’a.49
Likewise in Somalia, women’s groups have grounded their resistance to female genital mutilation and
40 denial of inheritance rights (both accepted under customary law) as inconsistent with Islamic law.50

It is also not to say that these are the only effective means of supporting customary legal systems to
operate more effectively and provide greater protection to marginalized groups. A key example is
how states can modify, regulate or otherwise utilize the interface between the customary and state
systems to influence the manner by which justice is dispensed at the customary level. Moreover,
while this chapter has concentrated on customary leaders as potential vehicles of reform, perhaps
an even more significant change agent is users themselves. Armed with knowledge about their
rights and alternative paths to justice, users are critically positioned to motivate change in their
leaders and thus in norms and outcomes. A better understanding of such entry points should be
prioritized in all strategies of justice sector reform.
 Chapter 2
footnotes Traditional Law and State Judiciary in East 30 The case of northern Namibia, discussed
1 T. Thorne, Rule of Law through Imperfect Timor, paper prepared for the United by Ubink in this collection, shows that
Bodies? The Informal Justice Systems of States Institute of Peace (2006) 68. some self-statements are in fact binding.
11 International Council on Human Rights, 31 A. Akechak Jok et al, A Study of Customary
Burundi and Somalia, Centre for Humanitarian
Dialogue Policy Paper (2005) 1. Plural Legal Orders and Human Rights Law in Contemporary Southern Sudan,
2 E. Wojkowska, Doing Justice: Informal sys- (DRAFT for consultation) (2009) 73-4. commissioned by World Vision
12 World Bank Indonesia, Forging the Middle International and The South Sudan
tems can contribute, United Nations
Development Programme, Oslo Governance Ground: Engaging Non-State Justice in Secretariat of Legal and Constitutional
Centre, The Democratic Governance Indonesia, Social Development Unit, Affairs (2004) 22-3; M.O. Hinz, ‘The
Fellowship Programme, (2006) 5. Justice for the Poor Program (2008) 44; Ascertainment of Customary Law: What is
3 C. Nyamu-Musembi, Review of Experience International Council on Human Rights, it and what is it for?’ (United States
in Engaging with ‘Non-State’ Justice above n 11, 43. Institute of Peace, George Washington
13 Wojkowska, above n 2, 5. University and World Bank conference on
Systems in East Africa, Commissioned by
14 World Bank Indonesia, above n 12, 61-62. Customary Justice and Legal Pluralism in
Governance Division, DFID (UK) (2003) 6-
15 Thorne, above n 1, 7. Post-Conflict and Fragile Societies,
7; International Council on Human Rights,
16 D. Pimentel, ‘Rule of Law Reform without Washington, 17-18 November 2009, 136).
Plural Legal Orders and Human Rights
(DRAFT for consultation), (2009) 40. Cultural Imperialism? Reinforcing 32 J. Gundel, “The predicament of the Oday:
4 E. Wojkowska, above n 3, 14. Customary Justice Through Collateral The Role of Traditional Structures in
5 R. Mani, Beyond Retribution: Seeking Review in Southern Sudan’, United States Security, Rights, Law and Development in
Justice in the Shadows of War, Blackwell Institute of Peace, George Washington Somalia”, Danish Refugee Council and
(2002) 37-38. University and World Bank conference on Oxfam-Novib (2006) 9, 12; D.J. Gerstle,
6 D. Isser, ‘Re-thinking Legal Pluralism and Customary Justice and Legal Pluralism in ’Under the Acacia Tree: Solving Legal
the Rule of Law in Post-Conflict and Fragile Post-Conflict and Fragile Societies, Dillemas for Children in Somalia” UNDP
Countries’ (United States Institute of Washington, 17-18 November 2009, 42. (2007) 40-41; A Le Sage, “Stateless Justice
17 International Council on Human Rights, in Somalia – Formal and Informal Rule of
Peace, George Washington University and
World Bank conference on Customary above n 11, 78. Law Initiatives.” Centre for Humanitarian
18 Ibid 41. Dialogue (2005) 34-5.
Justice and Legal Pluralism in Post-Conflict
19 S. Golub, Beyond Rule of Law Orthodoxy: 33 International Council on Human Rights,
and Fragile Societies, Washington, 17-18
November 2009, 13). The Legal Empowerment Alternative, above n 11, 43; L. Chirayath, C. Sage and M.
7 United Kingdom Department for Carnegie Endowment for International Woolcock, Customary Law and Policy
International Development (DFID), Non- Peace, Democracy and Rule of Law Project Reform: Engaging with the Plurality of
State Justice and Security Systems (May No. 41 (2003) 16. Justice Systems, prepared as a
2004), 4. Note that despite this, DFID’s pol- 20 International Council on Human Rights, background paper for the World
icy on safety, security and access to justice above n 11, 9-10; Penal Reform Development Report 2006: Equity and
recognizes the importance of traditional International, Access to Justice in sub- Development (2005) 2.
and informal systems as complements to Saharan Africa: The role of traditional and 34 T. Mennen, ‘Putting Theory into Practice –
formal state systems. It notes that non- informal justice systems, (2000) 1. Improving Customary Justice’ (United
state justice and security systems address 21 International Council on Human Rights, States Institute of Peace, George
issues that are of deep concern to the poor, above n 11, 71-2, 78. Washington University and World Bank
including personal security and local crime, 22 R.E. Manning, The Landscape of Local conference on Customary Justice and
protection of land, property and livestock, Authority in Sierra Leone: How ‘Traditional’ Legal Pluralism in Post-Conflict and Fragile
and resolution of family and community and ‘Modern’ Justice Systems Interact, Societies, Washington, 17-18 November
disputes, and that they need reform in Justice and Development Working Paper 2009, 140).
order to become fairer and more effective. Series 1(1) (2009) 12. 35 USAID, Alternative Dispute Resolution
8 UNSC, ‘Justice and the Rule of Law: The 23 Penal Reform International, above n 20, 141; Practitioners’ Guide, Center for Democracy
United Nations Role’ 4835th Meeting of the C. Nyamu-Musembi, Review of Experience in and Governance (1998) Appendix A-D, 1; S
Security Council (30 September 2003) UN Engaging with ‘Non-State’ Justice Systems in Golub, Non-State Justice Systems in
Doc S/PV.4835, 6; UNSC ‘Report of the East Africa, commissioned by Governance Bangladesh and the Philippines, paper
Secretary General on the Rule of Law and Division, DFID (UK) (2003) 4. prepared for the United Kingdom 41
Transitional Justice in Conflict and Post- 24 Wojkowska, above n 2, 41. Department for International Development
Conflict Societies’ (2004) UN Doc 25 Penal Reform International, above n 20, 141. (2003) 10-12, 28; L. Hasle, Too Poor for
S/2004/616 [10]; UNSC ‘On Justice and 26 Ibid 143. Rights? Access to Justice for Poor Women in
the Rule of Law: The United Nations’ Role’ 27 UNDP A2J, Programming for Justice: Bangladesh: A case study, MSC Human
4833rd Meeting of the Security Council (24 Access to All - A Practitioner’s Guide to a Rights (2003/04) 11-13, 20.
September 2003) UN Doc S/PV.4833 3; Human Rights-Based Approach to Access 36 Hasle, above n 35, 24.
UNSC, ‘On Justice and the Rule of Law: The to Justice (2005) 103. 37 USAID, above n 35, Appendix B, 8; L. Hasle,
United Nations Role’ 5052nd Meeting of 28 M. Stephens, ‘Typologies, Risks and Too poor for rights? Access to Justice for
the Security Council (6 October 2004) UN Benefits of Interaction Between State and Poor Women in Bangladesh: A case study,
Doc S/PV.5052 (Resumption 1), 14. Non-State Justice Systems’ (United States MSC Human Rights (2003/04) 23-4, 32-3.
9 UNDP, Access to Justice in Aceh: Making Institute of Peace, George Washington 38 Hasle, above n 35, 21-2.
the Transition to Sustainable Peace and University and World Bank conference on 39 Open Society Institute Justice Initiative,
Development in Aceh, in partnership with Customary Justice and Legal Pluralism in ‘From the Files: Three Justice Problems’,
BRR Agency for Rehabilitation and Post-Conflict and Fragile Societies, Between Law and Society: Paralegals and
Reconstruction, BAPPENAS, UNSYIAH, Washington, 17-18 November 2009, 151). the Provision of Primary Justice Services in
IAIN, IDLO and the World Bank (2006) 11. 29 Ibid; see also World Bank Indonesia, above Sierra Leone (2006) 28.
10 T. Hohe and R. Nixon, Reconciling Justice: n 12, 26-7. 40 Ibid 28-30.
 41 Ibid. in Northern Uganda’ (United States Afghanistan and recommendations on
42 Ibid 28-30. Institute of Peace, George Washington improving access to justice and relations
43 G. Corradi, ‘Human Rights Promotion in Post- University and World Bank conference on between formal courts and informal bodies
Conflict Sierra Leone: Coming to Grips with Customary Justice and Legal Pluralism in (2005) 5.
Post-Conflict and Fragile Societies, 49 T. Barfield, N. Nojumi and J.A. Thier,
Plurality in Customary Justice’ (United
States Institute of Peace, George Washington Washington, 17-18 November 2009, 83-4). Afghanistan: State and Non-State Dispute
45 UNDP, above n 9, 70-1. Resolution, Project on the Rule of Non-
University and World Bank conference on
46 J. Faundez, Non-State Justice Systems in State Justice Systems in Fostering the Rule
Customary Justice and Legal Pluralism in
Post-Conflict and Fragile Societies, Latin America, Case Studies: Peru and of Law in Post-Conflict Societies, United
Washington, 17-18 November 2009, 108). Colombia, University of Warwick (2003) 26-7. States Institute of Peace and The Fletcher
44 J. Adoko and S Levine, ‘How can we turn 47 Le Sage, above n 32, 32-33. School, Tufts University (DRAFT) 47;
48 USAID, Afghanistan Rule of Law Project: Field USAID, above n 48, 14.
legal anarchy into harmonious pluralism?
study of informal and customary justice in 50 Gundel, above n 32, 43-4.
Why integration is the key to legal pluralism

42
 Chapter 3
CHAPTER 3
Customary Legal Empowerment:
Towards a More Critical Approach
3
Ross Clarke*

1. Background

After decades of marginalizing customary justice systems (CJS)1 in justice sector reform and efforts
to improve access to justice, engaging with customary law and its related institutions is gaining more
prominence on the policy agenda. This commendable development has arisen from governments in
the developing world and aid agencies recognizing what the rural poor have always known: the
formal justice system represents only a fraction of the normative framework and justice services on
which citizens rely. There is now widespread acceptance that without engagement with CJS, any
efforts aimed at leveraging the law for poverty reduction, protecting the vulnerable or safeguarding
rights will be limited. As a result, justice sector reform policies expound the virtues of CJS—
accessibility, efficiency and legitimacy—yet require the benefits to be balanced against their
potential breach of international human rights standards.2 Justice sector programming is being
calibrated accordingly, and in many parts of the developing world, engagement with CJS is
becoming a common feature of the justice sector reform landscape.

Under current development parlance, engagement with CJS generally occurs through “legal
empowerment”, a relatively new phenomenon that aims to achieve enhanced realization of rights
and poverty alleviation for vulnerable social groups through the strengthening of legal process and
institutions. Legal empowerment rose to prominence in 2008 when the high-level Commission on
the Legal Empowerment of the Poor (CLEP) estimated that four billion people live outside the formal
rule of law, leaving them vulnerable to rights violations and unable to advance their interests as
economic actors. Engaging with CJS is but one of several strategies to achieve legal empowerment,
and despite some progress, the policy focus remains primarily conventional: strengthening and
using the formal legal system to assist the poor. Thus, while CJS have yet to take centre stage in legal
empowerment policy, the increasing recognition of their significance represents a serious rethinking
of the established rule of law orthodoxy.3 It further demonstrates that engagement with CJS has, to
a limited extent, entered mainstream legal development and rule of law programming. 43

The rise to prominence of customary legal empowerment has occurred in the absence of a rigorous
theoretical debate. In the rush to capitalize on the benefits of CJS, many complex, fundamental
questions as to how two legal systems with radically different traditions, form and operation are to
function together, reinforce the other and promote the rule of law have been overlooked. Engaging

* Ross Clarke is an Australian lawyer with over 8 years experience designing and managing legal empowerment, access
to justice and justice sector reform projects. He is co-founder of the Legal Empowerment Initiative. He has extensive
experience in Timor-Leste, Indonesia and Sri Lanka with organizations such the United Nations Development
Programme, the International Center for Transitional Justice, the International Development Law Organization and
Avocats Sans Frontieres. Ross has a LLM with distinction from the University of London’s School of Oriental and
African Studies and has been published widely on issues such as legal pluralism, transitional justice, climate change
law and sustainable development. All opinions expressed within this chapter are the author’s own and cannot be
attributed to organizations he is associated with.
 with CJS raises fundamental conceptual issues that shape the very foundation, legitimacy and
accountability of a legal system. All too often these complex questions are ignored, thereby
undermining the impact of well-intentioned policies and putting at risk the broader legal
empowerment project. Indeed, most customary legal empowerment interventions are implemented
in the absence of a sound theoretical framework, undermining project objectives and setting some up
to fail. This chapter aims to critique current customary legal empowerment policy and practice. By
highlighting the contradictions, tensions and potential consequences of current approaches, the case
is made for a more nuanced and theoretically grounded engagement with CJS.

1.1 Methodology and structure

This chapter seeks to address one central hypothesis: current customary legal empowerment
policy and practice is limited by its failure to adopt a theoretically grounded approach. Toward this
end, significant effort is made to explain the development of legal empowerment discourse. By
necessity this analysis is general in nature but is the result of extensive desk review of academic
literature, policy papers and practice-oriented research. A comparative case study approach is later
adopted, which draws on quantitative research, observation and semi-structured interviews. The
quantitative research—project-related baseline and evaluation data—was not developed specifically
for this article; however, there is significant overlap and synergy with the current field of enquiry.

The chapter is divided into the following sections: Section II tracks how justice sector reform policies
and interventions have increasingly engaged with customary law. Section III examines how current
legal empowerment approaches fail to address fundamental challenges raised when integrating CJS
into formal legal frameworks. Section IV provides two comparative case studies of legal
empowerment interventions—Timor-Leste and Aceh, Indonesia—and analyses the extent to which
policy challenges have been addressed. Section V suggests approaches to achieve more effective
engagement with customary justice systems. Section VI provides some concluding remarks.

2. The rise of customary law in justice sector reform

Although a relatively recent phenomenon, legal empowerment has antecedents in decades of

justice sector reform. A brief overview of the development of the legal empowerment discourse
provides useful context for current approaches, particularly the ever-increasing engagement with
CJS in the absence of a sound conceptual framework.

2.1 The law and development movement

Following independence, sweeping legal reform was considered a vital precondition to achieving
development and overturning structural racial discrimination in former colonies. In terms of external
assistance, the law and development movement arose to apply Western legal expertise to the socio-
44 economic challenges of the post-colonial era.4 This involved promoting Western regulatory
frameworks as the most effective legal vehicles to facilitate investment, enforce contracts, secure
property rights and promote development. Widely regarded as an ethno-centric external imposition
of foreign values and norms, law and development assistance has by and large been dismissed as a
failure.5

Central to the law and development approach was the imposition of Western laws with minimal
consideration as to their suitability for post-colonial contexts.6 Assistance was often channeled
through the direct placement of Western lawyers into senior judicial and institutional positions. It
was generally conducted with the complicity of local legal elites who had strong economic and
power interests in maintaining the status quo. In this framework, customary law was considered
incompatible with the modernist aspirations of newly independent post-colonial states and was
marginalized in the value-driven push for western-style legal frameworks.7 As a result, from a law
and development standpoint, CJS were considered the antithesis of reform; they represented
antiquated, tribal laws that prevented economic growth and modernization.
 Chapter 3
2.2 Rule of law programming
A shift in development policy occurred in the 1990s and gave rise to an increased emphasis on achieving
the rule of law as the primary development outcome to be accomplished by justice sector reform.8
Characterized by Golub as “rule of law orthodoxy”, this approach continues in the tradition of law and
development, emphasizing the role of justice systems in providing the legal framework for economic
growth.9 However, while this was the primary motivation, rule of law promotion was put forward as the
solution to a broad array of development inhibitors ranging from insecurity, civil conflict and governance
to service delivery. Usually characterized by a top-down, institution-focused and technocratic
approach, rule of law interventions often seek to establish and reform courts, bar associations and law
schools, conduct judicial training and develop human rights compliant legislation.10

Despite the emergence of substantial research demonstrating the importance and relevance of CJS
across the developing world, rule of law programming maintained a focus on legal centralism.
Indeed, from 1994 to 2005, no World Bank justice sector reform project explicitly dealt with
customary law.11 The perception of CJS since the rise of the law and development movement had
not changed. It remained incompatible with human rights, archaic, overly localized and inconsistent
with modernization. According to Brooks, it is this failure to take account of local norms and culture
that explains the minimal impact of rule of law promotion.12 The values and procedures that are
transplanted are inherently Western in nature, generally imposed by external actors and therefore
have negligible legitimacy and effectiveness. Rule of law promotion is therefore often perceived as
alien, overly complex and designed to serve the interests of elites.

Under rule of law assistance, justice sector reform gained increased prominence on the
development agenda. However, despite the recognition that “law matters”, mainstream rule of law
orthodoxy fails to appreciate the minimal relevance that state legal processes and institutions have
for the majority of citizens. Top-down reform overwhelmingly dominates rule of law policies, and
while the flow-on effects of institutional reform are intended to institute tangible community-level
change, the poor and marginalized are generally too distant from state structures to experience
meaningful benefit.

The continued failure to engage with CJS can be partly explained on conceptual grounds as CJS
question the very conceptual foundation of rule of law reforms.13 Under standard rule of law orthodoxy,
law-making, implementation and enforcement are the exclusive domain of the state. To permit or even
empower non-state institutions to undertake these functions undermines the positivist, legal centrist
conception of the rule of law. Accordingly, reforms to promote the rule of law generally overlooked CJS,
thereby marginalizing communities’ most relevant normative frameworks.

2.3 Legal empowerment and access to justice

The latest incarnation of justice sector reform is legal empowerment. Golub defines legal
empowerment as “the use of legal services and related development activities to increase 45
disadvantaged populations’ control over their lives”.14 By seeking to use law as a tool to protect and
advance the interests of the poor and marginalized, legal empowerment represents a paradigm shift
from previous justice sector reform policies. Justice is no longer analyzed with institutional service
providers as the main frame of reference, rather a bottom-up approach is employed, prioritizing
policies that enable rights-holders to set priorities and claim their rights.15 Implicit in this approach
is the acceptance that prior institution-focused reforms failed to achieve meaningful impact and
that community based strategies need to be employed.

Conceptually, legal empowerment is closely linked with access to justice and the provision of fair and
accountable mechanisms to protect rights, address grievances and resolve conflict. However, legal
empowerment is a broader notion that extends beyond legal process, aiming to capitalize on the
transformative, enabling potential of law to assist poverty reduction and safeguard rights. Thus,
under a legal empowerment approach, access to justice and the rule of law are considered the
“enabling framework” to achieve the full realization of rights.16
 To a greater extent than previous justice sector reform policies, legal empowerment and access to
justice discourse seeks to engage with CJS to achieve its aims. Indeed, in a 2008, DFID-funded
conference on access to justice, a key outcome was consensus that “any comprehensive access to
justice strategy needs to take greater account of informal justice systems”.17 Accordingly, a radical
change in mainstream thinking about the role of the state in providing justice services has taken
place. It is now recognized that in many developing contexts, particularly those affected by conflict
or complex emergencies, the formal legal system may be considered illegitimate, abusive and
ineffective.18 Where state legal systems have failed, there is increased space to accept alternative
models and use community-based justice systems to advance the interests of the poor and
marginalized.

A parallel trend is the increasing recognition that in many areas of law across the developing world,
CJS represent the most relevant normative frameworks, particularly for the rural poor. This is
especially the case regarding land and property issues, personal and family law, and civil matters
more broadly. Yet, while legal empowerment affords greater recognition to CJS than previous
policies, legal centralism still tends to dominate.

Accordingly, there is scope for legal empowerment discourse to engage more extensively with CJS.
An undercurrent remains that legal empowerment is most effective when achieved through the
formal justice system. While calling on practitioners in the field to think “less like lawyers and more
like agents of social change”, Golub fails to fully appreciate that for community-level legal change to
occur, in many contexts it can only be achieved through extensive engagement with CJS.19 He
further claims that:

although informal systems are the main avenues through which the poor access
justice (or injustice), such systems remain programmatic stepchildren to the judiciary
and other official institutions.20

Effectively integrating CJS into the formal legal framework appears problematic to Golub. Thus by
simultaneously recognizing the relevance of CJS while also marginalizing their role in achieving legal
empowerment, Golub demonstrates the legal centrist bias of mainstream legal empowerment
discourse. Although a limited role for CJS is foreseen, this occurs with CJS considered inferior
service providers rather than a context where engagement and integration is actively pursued.

2.3.1 Aid agency and donor policy

Although differences exist, legal empowerment policies and programs across aid agencies and
donors share several commonalities. The Asian Development Bank has been central in developing
the concept, recently defining legal empowerment as the ability of “women and disadvantaged
groups … [to] use legal and administrative processes and structures to access resources, services
46 and opportunities”.21 Across the board, there is general consensus on the need for a minimal level of
community legal awareness, the importance of accessible and effective dispute resolution
procedures (whether conducted by state or non-state institutions), and the need to overcome the
structural obstacles that prevent marginalized groups from enforcing their rights, accessing
services and advancing their economic position. A main point of difference between agency policies
is the extent to which CJS are explicitly promoted as a first-line provider of justice services and to a
lesser degree how integrated into state structures they should be.

The World Bank’s Justice for the Poor program emphasizes justice sector reform from a user
viewpoint and seeks to engage with the social, political and cultural reality faced by communities.22
It further accepts the importance of civil society organizations implementing community-level
activities and recognizes the role CJS must play in securing legal empowerment. In contrast, the
International Council on Human Rights Policy states that while CJS “cannot replace the ultimate
responsibility of the state for ensuring access to rights, they can be pursued in addition to formal
state institutions as a way of answering some of the immediate needs of many communities”.23
 Chapter 3
From this conventional human rights perspective, CJS are secondary to formal institutions and
perform a practical (although largely undesirable), temporary role until the formal justice system is
fully functional.

It should further be noted that increased engagement with CJS is by no means predominately
externally driven. On the contrary, customary law has constitutional recognition in countries such as
South Africa, Ethiopia and the Solomon Islands, and governments in the developing world are
increasingly promoting customary law engagement as an access to justice strategy.24 Across the
spectrum, therefore, CJS are gaining increasing traction as an essential component of effective legal
empowerment policies.

2.3.2 Commission for the Legal Empowerment of the Poor (CLEP)

The most prominent example of legal empowerment policy is embodied in ‘Making the Law Work for
Everyone’, a report released by the high-level Commission for the Legal Empowerment of the Poor
(CLEP) in 2008.25 Following a two-year global consultative process, the report aimed to conclusively
demonstrate the links between legal empowerment, poverty reduction and development. CLEP
estimated (on unclear grounds) that four billion people live outside the formal rule of law, leaving
them vulnerable to rights violations and unable to advance their interests as economic actors.
CLEP’s policy prescription under a legal empowerment framework involves expanding:

protection and opportunity for all: protecting poor people from injustice—such as
wrongful eviction, expropriation, extortion, and exploitation—and offering them equal
opportunity to access local, national and international markets.26

On a practical level, this is to be achieved through improving community legal literacy, providing
paralegal and legal aid services, and developing sound regulatory frameworks.

Regarding CJS, CLEP adopts a conventional, pragmatic approach, recognizing them as the
predominant justice system for the overwhelming majority of the world’s poor, but highlighting their
flaws from a human rights perspective. Thus, legal empowerment seeks to:

enable more poor people to make the transition from the informal sector to the
formal, while at the same time integrating useful norms and practices from informal
or customary systems.27

Yet perhaps more than any preceding mainstream policy framework, CLEP claims to seek
engagement with CJS:

alongside programmes to improve the state justice systems, reformers should seek
out opportunities for strategic interventions that improve the operation of informal or 47
customary justice systems and facilitate the efficient integration of the formal and
informal systems.28

The CLEP framework undoubtedly has an economic focus, seeking to use the law to empower
citizens as economic actors. In this regard, there is tension between engagement with CJS and the
objective of formalizing property, labor and what CLEP terms “business rights”. CLEP fails to
reconcile this tension and demonstrates significant bias towards formalization as the central route
to economic empowerment. Thus, while CLEP attempts to harness CJS to advance the economic
interests of the poor, it is too constrained by its reliance on neo-liberal economic policy and the
formalization of rights to fully capitalize on its benefits.

While the recognition of CJS’ potential contribution to legal empowerment is to be commended, CLEP’s
position is problematic. Most concerning is the distinct lack of political analysis. There is a substantial
body of research that highlights the embedded power structures at play within justice systems,29 yet
 CLEP fails to canvass the interests behind definitions of customary law and control over dispute
resolution processes. Although the unfair access and treatment that marginalized groups may receive
under CJS is highlighted, an underlying assumption is that these deficiencies can be mitigated through
what is commonly termed a political compromise: customary law is formally recognized “in exchange
for the rejection of certain customary norms that are repugnant to principles of non-discrimination and
gender equality”.30 This echoes the colonial repugnancy clause that recognized only those customary
norms that did not breach European legal values. Now, just as before, scant consideration is given to
whose customary law will be recognized and whose interests are served by such a policy.

Far from being well received, CLEP has been criticized on several fronts. Stevens attacks its apolitical
analysis, particularly the failure to address barriers that make legal institutions work against poor, its
lack of empirical evidence and the minimal guidance on sequencing and prioritization of interventions.31
While according to Balik, CLEP’s recommendations remain top-down, state-centered and orthodox in
nature, marginalizing civil society and bottom-up initiatives.32 Although Balik fails to give due emphasis
to CLEP’s recognition of CJS, he does highlight the inherent bias toward legal centralism.

2.4 Superficial engagement with customary law

Current legal empowerment policy seeks to capitalize on the benefits of CJS benefits and mitigate their
negative effects but falls well short of advocating for integration into the state legal framework. The
positive aspects emphasized include the local legitimacy, social cohesion, community ownership and
participatory benefits arising from CJS. Accessibility and efficiency, the ability to provide justice outside
of corrupt formal institutions and the use of non-custodial sanctions are also emphasized.33 However,
policy discourse commonly fails to examine the social, political and economic factors that dictate how
equitable, accessible and cost-effective CJS are for all constituent groups in a given community. With
the exception of analysis on gender-based discrimination, a unified community polity governed by an
apolitical community leadership is too often assumed. This is particularly problematic given the
prevalence of mediation-like procedures across CJS and the failure to question whether equitable
mediated solutions are possible where litigants have gross power differentials. For as Wojkowska has
aptly highlighted, community-mediated settlements reflect “what the stronger is willing to concede and
the weaker can successfully demand.”34 Overlooking these issues results in unsophisticated
engagement with CJS, which at the furthest extreme appears to romanticize community-level justice
processes, discounting the power interests they embody.

The negative effects of CJS emphasized under legal empowerment policies include the lack of
transparency, minimal accountability and vulnerability to elite capture.35 Overwhelming emphasis,
however, is placed on the human rights implications of customary law. Specifically, these include the
propensity for discrimination based on gender, age or ethnicity, the lack of transparency, regular
breaches of fair trial and due process guarantees, and the tendency for violent sanctions.36 Similar
to the analysis of potential benefits, there is rarely more than a simplistic, abstract examination of
48 these factors. There is a dearth of empirical evidence on how CJS function, in particular, on the
extent to which CJS breach human rights guarantees. Relevant questions that are often ignored
include: where does gender discrimination specifically occur? Is it an access issue, caused by
unfavorable procedures, or perhaps due to lenient sanctions? Further, what are the specific
procedural and evidentiary rules (assuming these can be determined) that constitute human rights
violations? When dealing with non-written, fluid systems of justice, answering such questions is as
complex as it is resource- intensive. Nevertheless, passing judgment on a particular CJS where
these issues remain unclear is premature.

At the furthest extreme, any evaluation of CJS that focuses overwhelmingly on breaches of human
rights guarantees appears misguided, ethno-centric and is open to claims of prejudice. To the extent
this occurs, legal empowerment can be misconstrued as aiming to protect non-Western people
from their own culture and tradition.37 While debate over the universalism of human rights versus
cultural relativism is beyond the scope of this chapter, it does raise pertinent issues that legal
empowerment policies must engage with. Legal empowerment critiques of CJS overwhelmingly
 Chapter 3
employ a universalist approach, focusing on the differences between state and non-state justice
systems, particularly how human rights norms are breached. Rather than narrowly seeking uniform
adoption of Western legal transplants, a more effective strategy is to engage with areas of
convergence.38 This may include the potential existence in both systems of rights to redress or
appeal, and efforts to strengthen CJS through formal oversight—where adopted, such an approach
results in a far more sophisticated engagement with CJS.

Further, criticism of CJS based on Western standards of justice is often contradictory.

Condemnation of physical sanctions imposed by CJS may emanate from jurisdictions that conduct
capital punishment, or the discriminatory practices of CJS criticized by countries where socio-
economic barriers severely restrict access to courts for marginalized groups. In short, when viewed
through a Western legal prism of an adversarial or inquisitorial system, which prioritize formal over
substantive justice, CJS may appear limited. Yet, how relevant are Western fair trial guarantees such
as rigid evidentiary procedures and formal impartiality for justice systems of a radically different
legal tradition? On the other hand, if accessibility, efficiency and restorative justice are the criteria for
evaluation, CJS appear far more positive, trumping their Western counterparts. Crucial to realize is
that formal and non-state justice systems have fundamental differences, having arisen from vastly
different historical processes. Direct comparisons may provide minimal benefit, especially when
human rights standards are the main point of reference.

Any evaluation of a justice system is unavoidably shaped by the values and legal background of the
evaluator. Ignoring this reality, as often occurs in legal empowerment discourse, results in
unsophisticated, poorly conceived policy. To the fullest extent possible, CJS must be evaluated
based on empirical evidence regarding how effectively and equitably they deliver justice services,
rather than generalized, abstract analysis as to whether human rights principles are breached. While
expensive and time-consuming, detailed information on how particular CJS function is a crucial
precondition to effectively promoting legal empowerment. Once a sufficient knowledge base exists,
specific entry-points for engaging CJS, as well as strategies to strengthen positive aspects and
mitigate risk areas, are more readily apparent.

3. Integrating customary justice systems: Unaddressed policy challenges

As current legal empowerment policies engage with CJS on a superficial level, significant policy
challenges remain unaddressed. The following section sets out the key factors either overlooked or
insufficiently resolved in the integration of CJS into formal justice systems. For this integration to be
effective—a prerequisite for making legal empowerment a reality—the challenges outlined below
must be overcome.

3.1 Definitional challenges 49

The very concept of customary law is contested, yet under legal empowerment policy and practice,
a substantial body of research that questions the foundation of customary law receives insufficient
critical examination.39 Undoubtedly, although engaging with customary law is a definitional
minefield, this cannot excuse the lack of analysis of such a heavily critiqued concept and term. As
will be discussed, despite the seemingly unavoidable imperative to analyze what makes some non-
state justice systems “customary” or to examine how customary law is constructed, much of legal
empowerment discourse employs the term unquestioningly. Indeed the failure to engage in critical
analysis of the term “customary” exemplifies the superficial, apolitical engagement with CJS that
seems to characterize legal empowerment discourse.

In the field of customary justice, value-laden terminology abounds, constantly shaping the lens
through which a legal system is analyzed. Terms as diverse as customary, traditional, informal,
indigenous, folk and unofficial are often used interchangeably or refer to similar legal constructs that
exist outside the realm of formal state law. Even characterizing non-state normative systems as
 “law” leaves one open to attacks of ethnocentrism since fundamental differences in form and
procedure may be lost when viewed through the Western concept of law.40 The matter is further
complicated by the wide variety and spectrum of CJS, all of which are highly dependent on localized
construction and are continually shaped by political dynamics. Some may have a basis in indigenous
custom, others have been distorted beyond recognition for political gain, while still others have been
shaped by contemporary dynamics and may reflect more Western notions of alternative dispute
resolution. The diversity and contextual specificity of such processes makes categorization
inherently dangerous. Indeed, it may be impossible to achieve consensus on the general legal
principles within a single normative system, much less the subtle nuances that define it.41 Yet, in the
push to capitalize on the access to justice benefits of CJS, this diversity in form and the wide-ranging
historical factors that have shaped customary law have received insufficient attention.

3.1.1 The colonial experience

Any meaningful engagement with CJS cannot avoid the widespread manipulation of customary law
by colonial administrations across the developing world. Mamdani explored how the indirect rule of
British colonial administrations across Africa fundamentally shaped what is today often termed
“customary law”.42 Through indirect rule, the colonial state empowered certain elites to define,
enforce and benefit from customary law. The co-option of these “customary” institutions by colonial
administrations therefore corrupted and distorted local justice systems, reconstructing them as
customary law.43 Although an oversimplification of the complex interplay between indigenous and
colonial systems of justice, at independence, customary law was often more a reflection of colonial
power relations than an indigenous normative framework.

The content of customary law, who defines it and its place within state legal frameworks, played a
divisive role during and since the colonial era. Whether through co-option or attempted
abolishment, both the content of customary law and the pluralistic legal framework inherited at
independence reflected colonial power relations.44 Up until the present, while attempts at unification
and codification of customary law have taken place45 and local justice processes have been altered
to some extent, much of the community-level power relations shaped by colonial-era customary law
remain intact. Particularly in rural areas, where state penetration is minimal and CJS deal with the
majority of legal disputes, this dynamic has profound implications for current policy trends that seek
to achieve legal empowerment through engagement with customary law.

The extent of criticism leveled against customary law both as a term and concept have led some to
question its validity.46 Indeed, there is a trend to use “non-state justice systems” over CJS to
overcome the post-colonial critique and employ more value-neutral terminology.47 Yet, despite
sustained criticism, the term “customary” is significant both in academic discourse and practice,
and accordingly is preferred for this chapter. In a field where alternatives for “customary” all suffer
deficiencies, no other term provides greater analytical value. Crucial, however, is to apply the term
50 critically, examine how colonial administrations altered and contemporary political dynamics
continue to shape what is today considered customary law. This analysis must frame how we think,
engage with and program interventions related to CJS. Yet, by taking customary law at face value,
this is something that legal empowerment policy and practice consistently fail to do.

3.2 Lack of political analysis

The uncritical use of the term “customary law” underscores a more general failure of the legal
empowerment agenda to position itself within a broader socio-political context. Indeed, legal
empowerment policy and practice suffer from an apolitical approach in two key respects. First, the
power relations embodied in defining and administering customary law rarely receive any attention.
By perpetuating a “myth of traditionalism”, community elites can easily exert undue influence over
local justice systems, entrenching their economic and political interests in the process.48 As a result,
community leaders—possibly “decentralized despots”49—can receive official recognition but this
may perversely have a disempowering effect for disadvantaged groups. Second, engaging with CJS
necessitates extensive reform of state-centric justice sector policies. According to Stephens, where
 Chapter 3
CLEP and legal empowerment fall short is their failure to properly deal with the political economy of
reform.50 As developing contexts are often characterized by mutually reinforcing networks of
political patronage, there are powerful vested interests in maintaining the status quo and keeping
disadvantaged groups at the margins.51 Throughout history, political and economic elites have
shaped legal frameworks for their own benefit; for engagement with CJS to be successful, the
minimal incentives for reform must be overcome. Above all, to achieve legal empowerment,
particularly through engaging CJS, reformers must navigate through a highly politicized reform
process. By ignoring this reality and disregard the political capital necessary to institute pro-poor
justice sector reform, policy is repeatedly not translated into practice.

CJS are shaped by factors both historical and contemporary: cultural practices passed down
through generations, the influence of imposed power structures and imported justice systems, aid
interventions, political contestation and social movements. While the constructed nature of
customary law is seemingly an unavoidable issue when engaging with CJS, current justice reform
policies appear to operate as if in a political vacuum, with questions over what is customary law, who
defines it and most importantly, who benefits and loses, clouded by the simplistic balancing of
customary law’s practical benefits against the possible violation of human rights principles.
Engaging with customary legal systems requires careful analysis of the power relations and political
dynamics that community-level justice systems embody. To avoid these complex questions risks
project failure at best and can be destabilizing at worst.

3.3 Challenge to sovereignty

Based on European Enlightenment philosophy, the creation of substantive law in Western liberal
states since the late 18th century has been considered the sole domain of a democratically elected
parliament, while the dispensation of justice was to be administered by an independent judiciary.
According to Hobbes and Rawls, justice is dependent and inseparable from a fully sovereign state
and can only be dispensed through sovereign institutions.52 Arguably, any official recognition of CJS,
either through the ability to create law or as a state- sanctioned justice process, directly challenges
state sovereignty. Where actors in CJS—by definition not agents of the state—dictate the applicable
normative framework and adjudicate disputes based on such norms, the state’s assumed exclusive
authority to create and adjudicate law has been usurped. Further, wherever states seek to integrate
CJS into formal justice frameworks, complex sovereignty issues arise regarding what constitutes
law, how it is defined and who can legitimately adjudicate disputes.

These fundamental conceptual questions are all too often ignored under legal empowerment
policies. Even in contexts where customary law has constitutional recognition, the extent to which
non-state actors can create law and administer justice is rarely sufficiently defined. Throughout
Western liberal thought, only the sovereign state can legitimately perform law-making functions. Yet,
contemporary development models place liberal state-building as the overall objective of political
reform while simultaneously providing increased recognition of CJS as a means to achieve legal 51
empowerment. Conceptually, these goals are opposed.

What is the impact of this conceptual incongruity? How important is it that CJS undermine state
sovereignty? In the short term, the impact of empowering CJS primarily affects the state’s ability to
hold justice actors accountable and its capacity to build legitimacy in judicial affairs. As non-state
actors, individuals involved in CJS can still be subject to regulatory control, but ensuring compliance
with basic standards is problematic when they are not agents of the state and are subject to minimal
oversight. Especially in contexts where states struggle to assert a legitimate presence, empowering
CJS runs contrary to conventional state-building. While often a practical necessity to provide access
to justice, promoting CJS as a primary dispute resolution process undermines the position of state
justice institutions and restricts their influence.

These issues can be overcome if CJS are integrated into the state legal framework, and their
jurisdiction and authority are carefully regulated. If this occurs, CJS in many regards lose their non-
 state character and, as discussed in more detail below, this undermines their flexibility and adaptive
capacity. Important to recognize, however, is that empowering CJS challenges the very foundations
of a positivist legal framework. Finding strategies to mitigate these conceptual inconsistencies is
crucial to achieving coherent justice sector reform.

3.4 Structural inequality

Where legal empowerment includes governmental recognition of CJS, it runs the risk of instituting
structural inequality among various population groups within the country. While not an uncommon
phenomenon, particularly where indigenous or religious minorities are given limited autonomy over
certain areas of law, the potential consequences of recognition of CJS are rarely canvassed in full.
Equality before the law is a general presumption of the liberal democratic state, yet this can be
undermined wherever customary law is officially recognized. The counter-argument emphasizes
the importance of CJS to achieve a limited form of self-determination, and is often raised in relation
to indigenous minorities.53 Conversely, where entrenched CJS receive no official recognition, states
can be criticized for failing to protect cultural norms. The problematic situation may also arise where
established CJS are widespread in practice but remain unregulated and subject to minimal
oversight.

Thus, official recognition of CJS may often result in a trade-off between self-determination and
social stability. While the associated risks can be managed, any promotion of separate legal orders
for specific social groups will have social impacts, both positive and negative. Yet, in terms of
contemporary legal empowerment, these social consequences are rarely taken into account.
Lessons can be learned from post-independence sub-Saharan Africa where several countries (most
notably Tanzania) attempted to build national unity through implementation of a uniform version of
customary law applicable to all citizens.54 Heavily criticized, Tanzania’s codification of customary
law excluded the practices of some groups and to that extent was generally ignored as these groups
continued to practice their own customary law.55 Thus, nationalist reform that created a unified
customary law, applied regardless of personal, religious or tribal affiliation, failed to change the de
facto situation and further marginalized groups whose practices were not contained within the
officially recognized customary law. As a result, well-intentioned policy had negative social
implications.

Yet, where ethnic or religious groups are marginalized, accommodation of a distinct, culturally
specific justice system within the broader legal framework may facilitate the recognition of
minorities necessary to achieve a viable state. The Indonesian Government’s recognition of Islamic
shariah in Aceh as part of a provincial autonomy package to quell separatist aspirations provides just
one example. Connolly has suggested that such recognition is analogous to federal legal systems
where states have jurisdiction over most areas of law but are constrained within a unified federal
framework.56
52
It should come as no surprise that the recognition of different legal orders for different social groups
may have profound social consequences. After all, although law has long been considered a form of
social engineering inextricably bound in its social context,57 recent legal empowerment engagement
with CJS avoids these complex sociological questions. Whether with positive or negative effect,
recognizing CJS can dramatically alter the power structures operating within a legal framework.
Policies to achieve legal empowerment must therefore address the socio-political consequences of
formally sanctioning non-state actors to exercise judicial power. Until this occurs and legal
empowerment adopts a more politically grounded approach, unintended outcomes and adverse
results may prove difficult to avoid.

3.5 Formalizing the informal

Implicit in any recognition of CJS is integrating informal, often customary, processes into formal
legal frameworks. From a conceptual perspective, this may undermine the very constitutive
elements of CJS, stripping them of their beneficial attributes. Whether through codification of
 Chapter 3
customary norms or integration into the court hierarchy, the institutions and processes that
constitute the CJS can be profoundly altered. Bryde highlights how codification of customary law
removes its adaptive capacity, a commonly referenced benefit of CJS.58 Unwritten customary rules
can reflect rapidly changing social circumstances; however, when codified, they become frozen in
time and lack the dynamic flexibility to adapt to social change. Under this analysis all positive law is
likewise flawed, and such arguments rarely highlight how legislation is amended to account for
changing values. While uncodified normative structures can adapt more quickly, they suffer from a
lack of certainty and are open to claims of illegitimacy, especially when compared to codification by
a sovereign parliament. A trade-off between loss of adaptive capacity for increased legitimacy may
therefore ensue.

Conversely, the local legitimacy of CJS arising from custom and tradition may also be affected by
integration into state structures. This charge has been leveled at the gacaca community-based trials
for the Rwandan genocide where state intervention in customary legal institutions has resulted in
the perceived loss of customary legitimacy and minimal impact of the process.59 Further, where CJS
are subject to state regulation, procedural flexibilities that can contribute to greater substantive
justice may be lost. Accordingly, there are considerable trade-offs to be made when CJS are brought
within formal frameworks; however, any negative effects are rarely canvassed in full by legal
empowerment interventions. Therefore, when evaluating policy regarding CJS, a key consideration
is whether a suitable balance between formalization and non-formalization has been made.

3.6 Jurisdictional issues

Crucial to effective integration of CJS into formal legal systems are clearly and simply defined
jurisdictions. This is a key requirement for effective oversight and prevention of abuses of power. Where
uncertainty exists, inefficiency has been instituted, claimants may be unclear where to seek justice
services, record-keeping issues are exacerbated, and monitoring becomes more complicated.60 And
yet, rarely across legal empowerment policies can anything other than a general jurisdictional
delineation be found. A common approach is for CJS to have primary jurisdiction over civil matters
while formal justice institutions—the police, prosecution, courts and penal system—have sole
jurisdiction over criminal matters. In some cases, the jurisdiction of CJS extends to minor criminal
offences. While a relatively simple division of authority, such an approach faces implementation
challenges and may contradict the very customary practices that aim to be embraced.

Cases dealt with by CJS may not fit easily within the neat categories of civil and criminal law, nor do
these concepts translate easily into non-Western legal systems. Criminal law is generally defined as
state-issued rules that prohibit conduct that threatens public safety. As a result, it is highly
dependant on knowledge of state law, which is often absent in rural communities with minimal
formal education and literacy. In contrast, civil law is usually defined as the body of laws that
regulates private rights and governs disputes between individual citizens. This distinction between
public and private law is central to definitions of criminal and civil law. In contexts where there is 53
minimal division between public and private domains and civil matters may invoke criminal
sanctions, the criminal/civil distinction may hold minimal relevance. Further, the conventional
approach fails to recognize that CJS often employ their own normative frameworks that may
resemble or overlap with state criminal and civil law but are rarely one and the same. Basing the
jurisdiction of CJS on external legal categories therefore poses conceptual and practical challenges.

Mamdani further claims that the distinction between civil and criminal law as it applies to customary
legal systems was shaped by the need of colonial administrations to exercise exclusive control over
criminal justice.61 By defining and administering criminal law the colonial state could more readily
subjugate threats and support its local power base. Civil law, alternatively, was considered personal
in nature and less useful for pursuing colonial interests. As a result, the colonial state, especially in
anglophone Africa, made minimal efforts to intervene and regulate civil laws. Legal empowerment
policies often perpetuate the same divide. Selecting the limits and methods of defining the
jurisdiction of CJS therefore involves political considerations. Under legal empowerment
 frameworks, a simplistic approach is usually adopted, often limiting CJS jurisdiction to civil cases
without analysis of whether this is locally appropriate or achievable in practice.

3.7 Accountability
A clear challenge when engaging with CJS is ensuring the accountability of actors, in most cases
community leaders. Nyamu-Musembi highlights the importance of ensuring accountability upward
to the state and downward to the community to maximize the potential of CJS.62 In terms of upward
accountability, CJS present difficulties because of their non-state nature. Unlike judicial officers,
they operate outside the state legal system and are not subject to contractual obligations, standards
of professional responsibility or disciplinary procedures. On a more basic level, CJS actors rarely
receive a substantial salary or significant economic incentives that can be used as leverage to
encourage performance of their functions to ethical standards. By providing reasonable
remuneration for the justice services provided by the community leaders who administer CJS—as
is received by all actors in the formal justice sector—the imposition of uniform standards is made
more acceptable, and greater accountability can be fostered.

A strategy to rectify the lack of downward accountability is the democratic election of appointees to
local tribunals, courts or customary councils. In Uganda, the United Republic of Tanzania and Eritrea,
this approach has been adopted allowing communities to elect or vote out appointees after a fixed
term if they have not performed to acceptable standards.63 While a positive trend, community-level
power dynamics may impact on the extent to which local elections can promote the accountability of
CJS actors. In particular, where adjudicators of customary law derive their authority from tradition,
attempting to impose a democratic process onto entrenched power structures may yield minimal
results. Nevertheless, where CJS are unresponsive to community needs or plagued with corruption,
democratic processes as well as complaints mechanisms can play a useful role.

Providing oversight and improving the accountability of CJS by integrating them into formal appeal
structures offers significant potential. Assuming citizens are sufficiently aware of their rights of
appeal and the barriers to accessing courts can be overcome, facilitating the appeal of CJS
decisions can ensure that minimum standards and core human rights protections have not been
breached. The judiciary will, however, face significant challenges in determining the applicable
customary law to provide. Where disputes have been mediated by CJS, appeals would generally not
be required given joint agreement on the resolution. However, where agreement cannot be reached,
one party feels a determination is unjust, or criminal matters are concerned, appeal proceedings
could be initiated. Through such a structure, the legal empowerment benefits of utilizing CJS can be
achieved while ensuring oversight through appeal procedures.

Oversight for CJS garners most attention in relation to potential breaches of human rights
guarantees. As discussed previously, these are presumed to include discriminatory practices,
54 violent punishments and breaches of fair trial provisions. Despite human rights being a substantial
field in terms of research and practice, there is alarmingly little analysis of how to engage with CJS
within a human rights framework. For some scholars, the two concepts are diametrically opposed.64
Such a simplistic approach unreasonably sidelines CJS, preventing the substantial contribution they
could otherwise make to achieving legal empowerment. Yet, policies can seek to engage with CJS
and mitigate human rights risk areas. For high-risk cases such as gender-based violence, Nyamu-
Musembi suggests routine review of decisions by a higher authority rather than relying on claimant-
initiated appeal processes.65 Further, engaging with CJS actors in human rights norms and seeking
a convergence of practices can represent a way forward. Additional practical strategies will be raised
in the case studies below, however it is clear that determining how to engage with CJS within a
human rights framework is an area requiring substantially more research.

Although faced with significant implementation challenges, facilitating appeal of CJS decisions to
first-tier courts has potential to resolve many of the concerns leveled at community-legal
processes. Greater accountability of actors is fostered, judicial oversight can ensure that
 Chapter 3
applicable law and human rights standards have been complied with, and increased
professionalism of CJS can be expected due to their interaction with the formal judiciary. Yet, for
this to occur, the mistrust and at times hostile relationship between formal and non-state justice
systems must be overcome. Caution must therefore be taken to ensure working relationships are
developed and any procedures instituted are achievable in practice. With limited exceptions,
current engagement with CJS insufficiently examines these vital accountability and oversight
issues. Long-term policies are required to ground CJS into appeal structures and to develop
effective accountability mechanisms.

3.8 Practical constraints

An appropriate starting point for engagement with CJS is that it is almost impossible to replace or
completely abolish entrenched community legal processes; any attempt to do so may cause more
harm than good.66 In the post-colonial era, few countries took an abolitionist approach, recognizing
that integration is a far more effective and realistic strategy.67 Engagement is therefore not only the
more pragmatic option, but carries the benefits of locally legitimate and accessible justice that are
cornerstones of legal empowerment. However, to make this a reality, several critical implementation
issues must be overcome.

An often sought first step when aiming to integrate CJS into formal legal frameworks is defining what
constitutes non-state law and who it applies to. Unless there is reasonable clarity on essential
definitions, effectively integrating CJS into a formal legal framework will prove difficult.68 Regarding
the definition of substantive non-state law, two general approaches have historically been adopted.
First is the research approach, characterized by the restatement of customary law in several sub-
Saharan African states. This provides legal security and transparency through a written compilation
of customary law in a given country. However, negative aspects of written restatements include
freezing customary law at one point in time thereby preventing evolution, creating a unified version
of customary law thereby excluding some practices and leading to decreased recognition and
adherence among certain groups, and difficulties in developing sound research methodology that
can claim to accurately cover all elements of CJS.69

The second approach utilizes local informants to define customary law. Tanner, critiquing the
Tanzanian model, questions whether urban elites with minimal knowledge of customary practices
interviewing informants and experts in customary law resulted in a biased version of local norms.70
He emphasizes the political nature of defining customary law and the need to ask which rules were
put forward, for what reason and whose interests they serve. However, any attempt to define
unwritten laws is unavoidably shaped by the interests of those involved in the process. A key concern
is therefore mitigating personal influence, instituting checks and balances, and wherever possible,
facilitating broad public consensus on what principles will be recognized.

Both approaches are flawed and result in trade-offs. Woodman warns that codification can create 55
“lawyer’s customary law”, a distortion of local custom that gets co-opted by the legal profession
and bears minimal relevance to community-level norms.71 Despite the complexities, however,
providing clear and accurate definitions of substantive customary norms is the foundation on
which integration with the formal justice system rests. Significant resources should therefore be
placed at building consensus on definitional issues before long-term engagement with CJS
commences.

Given minimal state reach and the inability to exert significant influence over community legal
processes, policies must canvass how change can be practically implemented. Top-down policies
have demonstrated minimal results, an apt example being attempts across sub-Saharan Africa to
formalize customary land tenure through legislative reform that have been widely dismissed as
ineffective.72 To be sure, despite decades of top-down reform towards formalization, it has been
estimated that only 2-10 percent of rural land across Africa has been formally titled.73 Crucial to
achieving effective engagement with CJS is therefore adopting a bottom-up approach.
 Relevant practical strategies include: awareness-raising with communities on the benefits of CJS
integration; consultation on core elements of procedural law; community-level training sessions for
CJS actors; and confidence-building measures between CJS and members of the formal judiciary.
Interventions such as these may be costly to implement at scale. Yet, there is a growing body of
research to show that effective engagement with CJS requires a bottom-up approach.74 Indeed, it
defies logic to assume that CJS, grounded in local culture and often positioned at considerable
distance from state legal structures, can be influenced by anything other than sustained
community-level engagement.

4. Comparative case studies of legal empowerment interventions: Timor-Leste and

Aceh, Indonesia

Given the widespread diversity regarding CJS and the extent to which they are integrated into formal
justice systems, case study analysis is necessary to effectively illustrate current approaches. This
section employs a comparative design methodology to contrast different approaches to engaging
with CJS to achieve legal empowerment.75 The objective is to explore through two exemplifying case
studies on how policy on the integration of CJS into the formal legal systems affects project
implementation and outcomes.

The two case studies are drawn from projects in which the author played a prominent role in design
and implementation. The first is the Access to Justice Program implemented by Avocats Sans
Frontieres (ASF) across rural districts of Timor-Leste from 2005-2009. The second is the adat or
customary law component of the Aceh Justice Project, implemented by the United Nations
Development Programme (UNDP) from 2007 until the present. The analysis is drawn from
observation, desk review of project documentation, monitoring and evaluation of project
implementation, and interviews with project staff. Accordingly, the case study research has a
longitudinal element as observation and interviews have been conducted over several years.76 The
case studies lack direct comparability in terms of project type and data collection; nonetheless, the
aim was to contrast different approaches and examine policy on CJS as the key variable.

Although differences distinguish each context, there are sufficient commonalities to enable
meaningful comparative analysis. Under Indonesian occupation, Timor-Leste—like Aceh—was fully
integrated into Indonesia’s national justice system, applying the same laws, procedures and
language. Following independence in 2002, Timor-Leste’s justice system remained shaped by its
Indonesian legacy despite sweeping top-down reform aimed at replicating the colonial Portuguese
system. Both localities have a well-documented and influential tradition of CJS. Unlike many African
countries that dominate research on customary law, colonial penetration in both Aceh and Timor-
Leste was less invasive, resulting in reduced colonial co-option of local systems of justice. Further,
56 despite decades of brutal separatist conflict with Indonesian armed forces and with subjugation of
local custom forming an element of conflict dynamics, in both contexts CJS remained intact and the
most relevant dispute resolution mechanisms. Finally, the place of CJS within justice sector reform
has featured in policy debates in both Timor-Leste’s and Aceh’s post-conflict era, although with
significantly different approaches.

4.1 Timor-Leste: Marginalizing non-state justice systems

4.1.1 Brief background to justice sector reform

Under Indonesian occupation and during over three decades of separatist conflict, the position of
the formal legal system in Timor-Leste was a common one for conflict ravaged societies. The courts
and judiciary acted as an instrument of state oppression, aiming to legitimize Indonesian occupation
through the prosecution of political opponents and protection of state interests.77 Following a 1999
referendum that demonstrated overwhelming support for independence, the interim United
Nations Transitional Administration commenced rehabilitating the Indonesian-era courthouses with
 Chapter 3
a view to have them form the foundation of independent Timor-Leste’s justice system. Yet, given the
widespread destruction of infrastructure during the Indonesian withdrawal and the departure of
almost all civil servants, the challenges faced were extreme.

While only one among many nation-building priorities, justice sector reform gained increasing
prominence throughout the United Nations administration’s three-year mandate. As the importance
of justice sector reform in securing law and order became increasingly apparent, additional resources
were channeled to legislative reform, selecting and training judicial personnel, and improving court
administration. Yet, following independence in 2002, minimal inroads had been made in building a
functional justice system: many Timorese still viewed the judiciary and applicable laws as illegitimate
relics of Indonesian occupation; case backlogs were up to two years; and severe gaps in qualified
personnel remained.78 In particular, there appeared a growing divide between elite-driven Ministry of
Justice policy and what was required to develop accessible justice services. The promotion of
Portuguese as the courts’ working language alienated lawyers and citizens alike; some estimates
place knowledge of only basic Portuguese at between 5-20 percent of the population.79 Further, the
use of expatriate judges and prosecutors from Lusophone jurisdictions served to reinforce
perceptions that the formal justice sector was a foreign construct that served elite interests.

4.1.2 Government policy on CJS

Similar to other developing contexts, customary law has general constitutional recognition in Timor-
Leste. Despite this, on a practical level there has been minimal state engagement with CJS. Hohe
and Nixon characterize state and non-state justice systems in Timor-Leste as existing in “different
universes” with the international community denying the relevance of local justice systems.80 During
the United Nations Transitional Administration, there was an absence of policy on CJS, and as a
result, the few initiatives that engaged with CJS were ad hoc and had limited application.81 CJS were
therefore used for conflict-related reconciliation processes82 and land and property disputes,83 but
did not receive broader recognition. Accordingly, given the power vacuum resulting from rapid
Indonesian withdrawal and the United Nation’s inability to establish a viable judicial presence, under
the United Nations Transitional Administration communities relied even more on CJS.

Post-independence government ministries were generally dominated by returned diaspora elites who
had lived out the Indonesian occupation in former Portuguese colonies. For many such returnees,
particularly those in the Ministry of Justice, recognition of customary law was incompatible with
building a modern state.84 As a result, despite the legitimacy and relevance they still held across
Timor-Leste, CJS were marginalized from justice sector reform policy. To the minimal extent CJS were
recognized, government policy strictly dictated that civil cases only could be resolved at a community
level. At the same time, United Nations reports increasingly recognized the failure of justice sector
reform and attributed a political crisis in 2006 partly to deficiencies in this area.85

In recent years—consistent with international trends—greater attention has been placed on the 57
potential benefits of CJS in achieving legal empowerment. A change of government in 2007 was the
catalyst for the policy shift, and in 2009, the Ministry of Justice in conjunction with the United
Nations Development Programme (UNDP) commenced a major research and consultation process
to develop legislation and policy guidelines in order to regulate the integration of customary law.
While a positive policy change, Perry has questioned the approach of using top-down legislative
reform to institute greater integration of CJS.86 The level of engagement that the new policy will
adopt, particularly in relation to accountability and oversight, remains to be seen.

4.1.3 Grassroots justice project

The primary objectives of ASF’s Grassroots Justice Project were to provide community-level access
to justice, increase respect for fundamental human rights and contribute to justice sector reform.
This was to be achieved through two interrelated components: the establishment of a network of
Community Legal Liaisons (CLLs) who provide legal information and advice, perform mediation, and
refer cases to the formal justice system; and a legal awareness campaign for targeted communities
 to increase knowledge of basic rights, laws and institutions and empower marginalized groups to
advocate for their interests. Activities included intensive training for CLLs on mediation and the
formal legal system, as well as a series of legal awareness workshops implemented at the district,
sub-district and village level. CLLs were integrated into legal awareness activities and often
presented the modules to their own communities.

CLLs were selected based on criteria such as literacy, education and experience in community
leadership. They were generally drawn from elected local governance structures, which under
Timor-Leste law had set quotas for women and youth representatives. Only a small minority (18 out
of 110 across the three-year project) were traditional customary leaders, or lia-nain, literally “owner
of the words”.87 This is despite the prevalence of customary leaders in every village.

ASF’s Grassroots Justice Program did not actively engage with lia-nain. This was primarily due to
government policy that in 2005 failed to recognize CJS. Indeed, in a project development meeting
with the Deputy Minister of Justice in 2005, his main input was that the project could work on all legal
issues with target communities except those associated with customary law. CJS were minimally
understood by ministry elites, considered backward, ill-suited to state-building and possibly even a
threat to the formal justice sector. While policy shifted in 2007 together with a change in government,
by this time the project was close to completion and the methodology had been established.

Inherent in project design was therefore a tension between providing community legal
empowerment but outside the framework of lia-nain. As a result, the project established a parallel
community-level structure that essentially sought to provide the same services as established
customary leaders. No guidance was provided on the role for current lia-nain or how the two
processes would interact. An independent evaluation of the project conducted by Lowe recognized
the contradictions within the project, praising it for building “on the traditional role played by village
and hamlet chiefs” by establishing CLLs that “bridge[s] the formal and traditional justice systems”.88
But it also highlighted the failure to consciously engage with lia-nain, which impacted on the
project’s ability to improve community-level dispute resolution.89 The evaluation explains how the
project contributed to confused and overlapping processes for primary dispute resolution:

Some CLLs see the mediation as an alternative to the arbitration of the Lia-nain. The
CLL Chief of one hamlet said that many people come directly to him with their legal
problems and disputes instead of going first to the Lia-nain. Several villagers said they
prefer the CLL mediation because it is free of charge. Some others said they preferred
the arbitration of the Lia-nain because it inflicts punishments on those who have done
wrong.90

The project further created confusion as to the boundaries between the formal and customary legal
58 systems:

One village chief CLL stated clearly that when a problem reaches him, it crosses from
the traditional to the formal system. However, several of the parties to mediation saw
the process as part of the traditional system.91

It is likely that this confusion was an inevitable result of a project designed without clarity as to the
relationship between CLLs and customary leaders, and the extent to which project dispute
resolution should be considered a customary process. Indeed, given the existence and interplay
between both processes, and that CLLs infused contemporary mediation practices with customary
practices, there was significant scope for ambiguity.

The Project illustrates the power dynamics and possibility for intense competition over dispute
resolution within communities. In the absence of clear roles, legal actors with differing sources of
authority, whether based on custom, elected village governance positions or through aid
 Chapter 3
interventions, may compete for control over dispute resolution. Where fees are charged either
overtly or indirectly, competition will increase. This has clear implications for building consistency
and oversight in community-level processes. It further complicates matters for citizens since
overcoming the uncertainty as to where to seek dispute resolution services may be more motivated
by personal or political affiliations rather than the quality of the service provided.

The overall point is that the absence of clear policy on how to engage with lia-nain and a minimal
understanding of community-level power dynamics limited project outcomes and may have
generated negative effects. Although this was shaped by misguided and subsequently amended
government policy, questions should be asked as to whether project activities should have been
modified given the absence of a clear strategy to integrate existing customary forms of dispute
resolution. The jurisdictional limits and accountability of CLLs were further insufficiently addressed.
As they operated in a middle ground between the formal and customary systems, neither formal
accountability mechanisms nor appeals to traditional authority existed. Thus, two key policy
considerations—interaction with lia-nain and oversight for CLLs—were overlooked. While only
operating on a relatively small scale, if such an approach were expanded nationally, it could seriously
undermine attempts to achieve legal empowerment.

4.2 Aceh: Customary law as a post-conflict recovery strategy

4.2.1 Brief background to justice sector reform

Similar to Timor-Leste, Indonesia’s western-most province of Aceh suffered decades of protracted
separatist conflict. While there were serious deficiencies in the functioning of the formal justice
system across Indonesia, the corruption, lack of independence and prosecution of political
opponents associated with the Suharto-era judiciary were particularly prevalent in Aceh. The
devastation wrought by the Indian Ocean tsunami of 2004 was the catalyst for peace negotiations,
which resulted in the Helsinki Memorandum of Understanding (MoU). This agreement ended
hostilities between the Free Aceh Movement (GAM) and the Government of Indonesia (GoI), and
provided the basis for extensive provincial autonomy for the Acehnese administration, including
over judicial affairs. Since 2001, increasing levels of autonomy had been granted to Aceh in an
attempt to resolve the conflict; however, the autonomy negotiated under the Helsinki MoU
represented the most extensive form of provincial self-government contemplated in Indonesian
history. This resulted in a distinct Acehnese shariah jurisdiction that replaced and expanded on the
jurisdiction of the national religious courts.

Following initial tsunami relief efforts, justice sector reform formed part of the recovery agenda,
particularly as it pertained to rehabilitating justice-related infrastructure and dealing with property
and inheritance issues caused by the tsunami. As tsunami recovery progressed, justice sector
reform shifted emphasis to focus on broader conflict-related and governance issues, primarily
improving service delivery in the courts, reducing corruption, enhancing access to justice and 59
raising community legal awareness. On the basis of provincial autonomy, Acehnese officials
emphasized engagement with CJS as a means to achieve greater legal empowerment.

4.2.2 Government policy on CJS

Unlike Timor-Leste, the end of conflict in Aceh facilitated a widespread revival of Acehnese culture,
tradition and custom. The increasing levels of autonomy and end of hostilities allowed the Acehnese
administration to institute new laws regarding religious life, shariah law, traditional authority
structures and customary law. Indeed, for the Acehnese, embracing adat92 or customary law is a
direct expression of Acehnese nationalism and harked back to the 17th century Acehnese Sultanate of
Iskandar Muda, where Aceh was a dominant, wealthy regional power free from external subjugation.93
As the central government attempted to suppress Acehnese adat throughout the separatist conflict,
post-conflict policy sought to reinstate Acehnese customary law as a central normative framework,
thereby marginalizing the influence of national law. Engaging with CJS has therefore been readily
embraced by the Acehnese provincial government for political as well as practical purposes.
 Acehnese adat has been recognized and regulated through several national and provincial
regulations, resulting in significant overlap. Most authoritative is Law 11/2006 on the Governance of
Aceh, which states that community disputes should be resolved by adat institutions. Under
provincial law, Regional Regulation 7/2000 requires law enforcement officers to give opportunities
to customary leaders to resolve community disputes before they enter the formal justice system;
this provides complete jurisdiction to customary processes at first instance regardless of the
seriousness or type of case. Further, Qanun94 5/2003 establishes a two-tiered system with the
keuchik (chief) and tuha puet (elder) resolving cases at the gampong (village) level. Cases involving
multiple gampong are adjudicated by mukim,95 who also hear appeals from disputants dissatisfied
with the determination at first instance. The mukim is the final level of appeal in the adat jurisdiction;
however, unresolved disputes and serious criminal cases can be appealed to formal courts. Aceh’s
regulatory framework, while providing a robust foundation for promoting CJS, contains minimal
clarity as to how inconsistencies between the levels of regulation will be resolved and provides scant
guidance as to how the policy will be implemented.

In an attempt to overcome the regulatory uncertainty, the peak body overseeing Acehnese
customary law, the Majelis Adat Aceh (MAA, or Aceh Adat Council) signed an MoU with the
Acehnese Governor and Chief of Police on the implementation of adat. This required that adat
decisions be documented in writing and also uphold the mediation, reconciliatory function of adat
institutions, but excluded serious crimes such as murder, rape and drug offences from its
jurisdiction. Accordingly, the MoU is inconsistent with the more authoritative Regional Regulation
7/2000, which provides adat with complete first instance jurisdiction. The MoU sets out an
exhaustive list of cases suitable for adat resolution including disputes related to land, inheritance
and agriculture, as well as less serious criminal offences such as minor theft and domestic violence
that “is not in the category of serious beating”.96 Since the legal status of the MoU is far from clear,
it most likely reflects an operational division of responsibilities between customary authorities at the
criminal justice system rather than a definitive statement of law.

Legal pluralism in Aceh is complicated by the presence of legislatively recognized shariah law
and specific shariah courts. Further, the line between customary (adat) and religious (shariah)
law is a grey one, with custom being infused with Islamic principles over centuries of
conservative Muslim practice in Aceh. Further, as imeum meunasah (religious leaders) are
mandatory members of adat councils, the distinction between religious and customary law is
opaque. Determining jurisdictional limits, especially after the layers of state law (both provincial
and national) have been added, is therefore an extremely complicated exercise. Given the
possibility of three jurisdictions for a single case, the scope for uncertainty and contestation is
significant.

In the post-disaster, post-conflict context of Aceh, legal pluralism is therefore in a state of flux. The
60 provincial government, in conjunction with the MAA and international actors, has set an extremely
progressive and innovative policy of engagement with CJS. However, this is complicated by
overlapping regulations, three separate yet imprecisely defined jurisdictions and minimal capacity
to institute such an ambitious policy. As a result, limited inroads into implementation have been
made; this transformational restructuring of the justice sector has occurred more on paper than in
practice.

4.2.3 Adat component of UNDP’s Aceh Justice Project (AJP)

In this context, UNDP sought to assist the Acehnese Government to clarify adat jurisdiction, build
more consistency in adat procedures and provide a set of minimum standards that adat dispute
resolution processes must adhere to. This process commenced with a detailed research project to
identify and build consensus on common adat practices across Aceh’s varied districts. As part of a
broader baseline survey, quantitative surveys were conducted with 800 respondents (52 percent
male, 48 percent female) across four districts in urban and rural areas, and qualitative in-depth
interviews were further held with over 60 key informants to verify results. A series of focus group
 Chapter 3
discussions specifically on customary law were further conducted. Some of the most illustrative
findings include the following:

■ There was an overwhelmingly poor perception of the formal justice system—53 percent consid-
ered it corrupt; 51 percent thought it treated participants unequally; and often, respondents had
such minimal interaction with the courts that they did not express an opinion.
■ 76 percent of respondents felt adat resolved cases fairly, with 66 percent stating that the proce-
dure of adat dispute resolution was clear.
■ 47 percent of respondents thought crimes such as a rape can be resolved through adat process-
es, while 79 percent of respondents felt that domestic violence cases should not be reported to
police if the case is being dealt with under adat.

In conjunction with the MAA, the research culminated in the ‘General Guidelines on Aceh Adat
Justice’ (Guidelines),97 a non-binding manual on best practice for adat dispute resolution that
attempted to resolve many of the deficiencies raised by the research. A series of public
consultations with key government, civil society and customary law stakeholders were held to
ensure widespread acceptance of the document as an accurate and viable basis to promote and
regulate adat. The final Guidelines then formed the basis of an extensive training program for
customary leaders aimed at improving the quality and consistency of adat processes. At the time of
writing, the training program was commencing implementation. The analysis that follows is based
on the framework established by the Guidelines.

The form of engagement with CJS embodied in the Guidelines led to the recognition of village-level
adat councils as primary dispute settlement mechanisms based on customary law. Substantive
customary law has not been codified and adat procedure, while defined in the Guidelines, does not
have legal status and only serves as a reference. The project provides a set of procedural standards
common to adat across Aceh and aims to build additional consistency, transparency and
compliance with human rights standards. This is to occur through consensus-building on
procedural standards, an extensive training program for adat leaders and substantial oversight. As
such, it represents a comprehensive, practical policy to promote CJS as an officially recognized first
instance dispute resolution mechanism. However, it faces significant challenges, primarily due to its
lack of a conceptual framework, with fundamental issues regarding the applicable law,
accountability of actors and human rights compliance left unaddressed.

Although adat institutions have jurisdiction over minor criminal matters, there is no certainty as to
which substantive law applies. Understanding of the substantive state law on domestic violence or
even non-criminal matters such as inheritance differs across the province, and cases will therefore
be subject to different treatment. Sanctions, while in theory mutually agreed among parties to the
dispute, may also differ widely depending on how the customary leader views the substantive law
and related violation. However, it must also be recognized that there is a necessary trade-off 61
between the certainty embodied in substantive state law and the more fluid, locally legitimate and
therefore more readily accepted norms of customary law.

Accountability as to the quality of adat decision-making is instituted by the possibility of appeal

to the mukim level and also to the courts. While a positive step, additional administrative and
financial strategies could also be employed to enhance the accountability of individual adat
actors. Given the potential for abuse of power, strategies such as payment, contractual
obligations or oversight committees could be adopted, although again, this may result in a trade
off with adat leaders’ local legitimacy. To be effective, such an approach may have to be adopted
at a later stage, when institutionalizing administrative structures is realistically achievable and
can therefore be expected to provide meaningful oversight. Despite the very real practical
constraints, instituting appropriate checks and balances on the exercise of customary judicial
power is an important strategy to foster greater integrity, accountability and legitimacy in the
process.
 In regard to human rights standards, the approach of the Guidelines has been to “soften the edges”
of Aceh’s customary system, rather than seek full compliance.98 A pragmatic consultative approach
was adopted to engage with customary leaders on human rights issues rather than impose
restrictions. Although this approach resulted in less than complete compliance with established
human rights standards, it was thought that a bottom-up, negotiated process would be more
effective than the top-down imposition of external norms, particularly given the absence of effective
compliance mechanisms. One issue in particular warrants specific attention. Female participation in
adat councils was a central area of concern. Historically, women have lacked a formal role in adat
processes except in limited circumstances where a geuchik’s wife may provide assistance for female
victims.99 In consultation with customary leaders and given the trend towards greater female
participation in other governance institutions, consensus was built that the core reasons to deny
women’s involvement no longer existed. Although structural issues mean that equal participation is
a distant objective, this does demonstrate that synergies between customary law and human rights
can be fostered and successfully inculcated.

In summary, the method adopted in Aceh represents a realistic and pragmatic approach to Aceh’s
legal pluralism. It establishes a policy of detailed engagement with CJS, linking them to appeal
structures and providing a uniform procedural law. However, substantial conceptual gaps remain.
The most important include whether communities can define their own substantive law, whether
engagement with human rights standards results in any change in practice, and how accountability
can be successfully fostered. These issues present significant challenges and will need to be
addressed as the existing project structures become more engrained. As long as they remain
unresolved, effectively institutionalizing adat dispute resolution within the broader state legal
framework will remain a distant objective and adat dispute resolution will be limited in terms of its
contribution to legal empowerment.

4.3 Comparative analysis

In the projects implemented in Timor-Leste and Aceh, there are two contrasting approaches to
engaging with CJS. The former, given an unconducive government framework, failed to engage
directly with customary justice actors, establishing parallel dispute resolution institutions and
procedures, thereby complicating community-level access to justice and failing to capitalize on the
existing capacity of CJS. The latter approach, implemented with the full support of the provincial
government and as part of a progressive engagement policy, adopted an overwhelmingly practical
approach. While understandable, this resulted in issues of accountability being marginalized and the
project lacking a clear regulatory framework on customary law. Given the inherent contradictions
and uncertainties in the Acehnese justice sector, there is a risk that the engagement with CJS
detracts rather than contribute to community access to justice. Nevertheless, in the face of serious
challenges, significant gains have been made, and the first steps to achieving legal empowerment
through better administered and more accountable customary justice have been taken.
62
In neither case has the political nature of community dispute resolution been actively addressed. In
the framework established by the Acehnese example, leaving the definitions of substantive law to
customary leaders leaves significant scope for dispute resolution to be manipulated for personal
gain. In the absence of effective oversight measures, this issue is compounded. In the Timor-Leste
project, empowering non-customary justice actors in a context where lia-nain continue to play a
legitimate, widely accepted customary role has generated confusion and contributed to tension.
Empowering any individual to perform community-level dispute resolution, even in the most neutral
forms of mediation, is a political act. Accordingly, there will be winners and losers both in terms of
who controls the procedure and how disputes are resolved. Acknowledgment of this political
dimension should be forefront in the design of projects that engage with CJS. Where this is achieved,
accountability and oversight mechanisms should be integrated as an appropriate countermeasure.

In terms of achieving legal empowerment, engaging with CJS may raise as many issues as it solves.
In the Timor-Leste example, the marginalization of customary leaders complicated community-level
 Chapter 3
dispute resolution — the central problem the project was attempting to resolve. While in Aceh,
although additional state-imposed demands were placed on customary leaders — uniform
procedures, adherence to certain principles and written decisions were all mandated — they
remained outside state authority. Legitimate issues raised by customary leaders included: Were
they to be considered agents of the state? Why should they not receive a salary like court officials?
Why should they comply with these additional burdens when minimal financial and technical
assistance was being provided?

While only a superficial indication of the myriad of issues raised in legally plural contexts, the two
case studies demonstrate that when any attempt to engage practically with CJS is made, crucial
conceptual challenges arise. This chapter contends that current legal empowerment practice at
best fails to address these issues due to practical constraints, or at worst, is so lacking in a
theoretical framework that fundamental conceptual issues are simply not recognized.

5. Current approaches: Towards closer engagement with customary justice systems

5.1 Consequences of current policy

The superficial engagement with CJS that occurs under most legal empowerment initiatives results
in several negative effects. First and foremost, it clearly limits the impact of any intervention. While the
main concerns are the longer-term consequences of not addressing the interaction between multiple
systems of justice, short-term results will also be limited. For example, strengthening CJS in the
absence of clearly defined and operational oversight mechanisms can facilitate poor quality dispute
resolution and perpetuate potential rights violations. Second, by avoiding complex conceptual and
jurisdictional issues, many interventions are set up to fail. In circumstances where the jurisdictions of
CJS are not clearly defined or the overall policy objectives are unclear, wastage and inefficiency will
likely result and impact lost. Third, a lack of coherence in justice sector policy not only restricts a
state’s ability to deliver justice services, but also impacts on broader human development.100

Wherever superficial engagement with CJS is perpetuated and projects suffer accordingly,
governments and donors will be less inclined to provide the investment necessary to fully harness
the benefits of CJS. Given the rising interest in engaging with CJS, now is a critical juncture to
demonstrate what can be achieved. If results are not forthcoming, however, engagement with CJS
may very well be considered a failed experiment with resources shifted back to formal rule of law
institutions.

5.2 Strategies for closer engagement

To be effective, engagement with CJS cannot occur on a superficial level. Rather, successfully
integrating two vastly different systems of justice, born of different traditions and shaped by
radically different historical processes, is a long-term, expensive and highly complex undertaking. To 63
be effective, there must be clarity on how the two systems intersect and interact. The following
section raises some practical, achievable strategies towards this end.

5.2.1 Detailed assessments

The lack of a knowledge base regarding CJS can too often justify poorly conceived policy. Detailed
assessments of the capacity, potential contribution and negative aspects of CJS, based on a
participatory research approach, should be integrated into all legal empowerment interventions.
While costly and time-consuming, the benefits gained outweigh the resources expended. Further,
given the increasing resources being committed to measuring project impact and the recognition
that CJS play a crucial legal empowerment role, there is significant scope for preliminary analysis
of CJS to be factored into baseline studies and initial evaluation frameworks. Once a sound
research base exists, determining effective entry points and areas of engagement can more
readily be achieved.
 5.2.2 Recognize and respond to the political nature of CJS
Overlooking the political nature of engaging with CJS and reform processes toward that end is a
consistent flaw of legal empowerment interventions. Strategies to address this must form part of
any theoretically grounded approach. Legal empowerment should therefore be contextualized
within broader reform processes such as decentralization and the democratization of local
government. When analyzed within a broader governance framework, the political interests at play
become more apparent, and engagement with CJS may be more feasible when couched in terms of
increased local participation in government. An understanding of potential reformers, institutional
incentives and constraints for reform, as well as what is politically achievable, will significantly enrich
legal empowerment interventions.

5.2.3 Engagement as the guiding principle

Constructive engagement, as opposed to modification or substitution, should be the guiding
principle when integrating CJS into the formal justice sector. Areas of synergy should be identified,
and checks and balances effectively instituted for risk areas. Wherever possible, both actors from
the formal and non-state sectors should be involved in jointly identifying jurisdictional limits,
procedural standards and lines of appeal. This is more readily achieved if rather than two
diametrically opposed systems, state and non-state justice systems are conceived as subsets of the
same framework, with CJS potentially forming the first tier of state-sanctioned dispute resolution.

Toward this end, Chirayath et al recommend establishing institutional structures to facilitate

dialogue between formal and non-state justice systems as an appropriate entry point.101 As lower
courts are closer to communities and accordingly have better knowledge of non-state law, dialogue
with judges from these courts should be prioritized. The objective is to create a conducive
environment for representatives of both systems to mutually develop and agree on transparent
rules to improve the functioning of both systems, particularly where they interact. Nyamu-Musembi
similarly emphasizes the importance of building dialogue between both systems and overcoming
the engrained preconception that people cannot exercise judicial power.102

5.2.4 Sustained support to CJS actors

Accountability of CJS actors should be fostered wherever possible. Strategies that should be
considered are election of CJS actors for fixed term periods, the payment of a stipend subject to
certain benchmarks being met, instituting effective oversight and complaints mechanisms, and
providing extensive and ongoing training. In this scenario, CJS actors resemble agents of the state,
similar to frontline service-providers in the health or education sectors. Increased emphasis should
further be placed on building the consistency and transparency of CJS decision-making. This can be
achieved through requiring paper records of decisions and the implementation of filing systems.
Such an approach may only be successful if CJS actors receive sufficient resources and incentives
to adopt a record-keeping system.
64

6. Conclusion

As the latest trend in justice sector reform, legal empowerment represents a paradigm shift both by
reducing the emphasis on formal rule of law institutions and its recognition—to some extent—that CJS
must play a role in harnessing the law to empower marginalized communities. However, one thing
current legal empowerment policy and practice fails to do is fully appreciate the inherent complexity of
effective engagement with customary law. At essence, engaging with CJS seeks to integrate two justice
systems with vastly different normative principles and historical development. Such a complex, fraught
process in the absence of clear lines of jurisdiction, carefully designed policies as to how the systems
interact and without effective mechanisms for oversight and accountability, sets many interventions up
to fail. To its detriment, legal empowerment policy often appears to assume a political vacuum, fails to
take account of the socio-political construction of CJS, and often perpetuates an idealized version of
customary justice, frozen in time and devoid of political contestation.
 Chapter 3
To make the legal empowerment project a reality, however, the necessity of taking a bottom-up
approach and closely engaging with community-based systems of justice is an inevitable
conclusion. While legal empowerment discourse recognizes this to a limited extent, the full
ramifications of such a policy are not commonly appreciated by practitioners, academics or policy
makers. Although the successful integration of CJS into the formal legal framework is an intricate,
lengthy, politically-charged process, legal empowerment in practice generally constitutes simplistic,
superficial engagement, overlooking fundamental issues of sovereignty, political influence and
accountability. A significantly more nuanced approach is required. This will take time and
substantially more resources and sits uneasily with output-focused donor priorities — yet
transforming customary legal empowerment from concept to reality demands nothing less.

footnotes focus/criminal_justice/articles_public 1998; Adelman, above n 29.

1 ations/publications/justice_20081124/just 40 F. Von Benda-Beckmann, ‘Who’s Afraid of
A caveat is necessary to qualify the use of
broad generalizations to cover the number ice_20081124.pdf> at 3 November 2010. Legal Pluralism?’ (2002) 47 (1) Journal of
18 B. Connolly, ‘Non-state Justice Systems Legal Pluralism and Unofficial Law.
and diversity of customary justice systems
and the State: Proposals for a Recognition 41 Connolly, above n 18.
across the developing world, even within sin-
Typology’ (2005) 38(2) Connecticut Law 42 Mamdani, above n 29.
gle states. See section on Definitional
Review 269. 43 Adelman, above n 29.
Challenges later in this chapter for in-depth
19 Golub, above n 3, 3. 44 Mamdani, above n 29.
analysis of the complex definitional issues
20 Ibid 16. 45 A prominent example is the Restatement of
that arise when engaging with customary law.
2 21 See for example, Asian Development Bank, Customary Law in Africa, led by the School
See generally E. Wojkowska, Doing Justice:
How Informal Justice Systems can Contribute, Overview of ADB’s Technical Assistance for Legal of Oriental and African Studies, which
UNDP Oslo Governance Centre (2006); Empowerment (2008) 4 <http://www.adb.org involved research and consultation to
Commission on the Legal Empowerment of /Documents/Reports/Legal-Empowerment achieve a unified written record of prevailing
the Poor (CLEP), Making the Law Work for /chap02.pdf> at 10 November 2010. customary norms. See, for example, A
22 M. Stephens, ‘The Commission on Legal Allott, Integration of Customary and Modern
Everyone: Report of the Commission on Legal
Empowerment of the Poor (2008). Empowerment of the Poor: A Missed Legal Systems in Africa (1964).
3 Opportunity’ (2009) 1 (132) Hague Journal 46 Veit, above n 39; Adelman, above n 29.
S. Golub, Beyond Rule of Law Orthodoxy:
on the Rule of Law. 47 C. Nyamu-Musembi, Review of Experience
The Legal Empowerment Alternative,
23 International Council on Human Rights in Engaging with ‘Non-State’ Justice
Carnegie Endowment for International
Peace Rule of Law Series No. 41 (2003). Policy, Enhancing Access to Human Rights Systems in East Africa, Institute of
4 D. Trubek and M. Galanter, ‘Scholars in Self- (2004) 72. Development Studies Paper commissioned
24 Chirayth et al, above n 11. by DFID (2003); Connolly, above n 18.
Estrangement: Some Reflections on the
25 CLEP, above n 2. 48 Connolly, above n 18.
Crisis in Law and Development Studies in
the United States’ (1974) (4) Wisconsin Law 26 Ibid 28. 49 Mamdani, above n 29.
Review 1062. 27 CLEP, Making the Law Work for Everyone: 50 Stephens, above n 22.
5 B. Bryde, The Politics and Sociology of Working Group Reports (2008) 42. 51 Ibid.
African Legal Development (1976). 28 Ibid 43. 52 A. Sen, Global Justice, Conference Paper for
6 Ibid. 29 See generally M. Mamdani, Citizen and Subject: World Justice Forum, Vienna 2008 (2008).
7 Ibid. Contemporary Africa and the Legacy of Late 53 Connolly, above n 18.
8 T. Carothers, ‘The Rule of Law Revival’ Colonialism (1996); S. Adelman, 54 Nyamu-Musembi, above n 47.
(1998) 77(95) Foreign Affairs 9. ‘Constitutionalism, Pluralism and Democracy 55 See generally E. Cotran, “Some Recent
9 Golub, above n 3. in Africa’ (1998) 42 Journal of Legal Pluralism Developments in the Tanganyika Judicial
10 Ibid. and Unofficial Law 73. System,” Journal of African Law 6, no. 1
11 30
L. Chirayath, C. Sage and M. Woolcock, CLEP, above n 27, 45. (1962); Osinbajo, ‘Proof of Customary Law 65
Customary Law and Policy Reform: 31 Stevens, above n 22. in Non-Customary Courts‘: 265.
Engaging with Plurality of Justice Systems, 32 D. Banik, ‘Legal Empowerment as a 56 Connolly, above n 18.
Background Paper for the World Conceptual and Operational Tool in Poverty 57 S. Falk Moore, ‘Law and Social Change: The
Development Report (2005) 3. Eradication’ (2009) 1 Hague Journal on the Semi-Autonomous Social Field as an
12 R. Brooks, ‘The New Imperialism: Violence, Rule of Law 117, 129. Appropriate Subject of Study’ (1972) 7 (7)
Norms and the ‘Rule of Law’’ (2003) 101(7) 33 Connolly, above n 18. Law and Society Review.
Michigan Law Review 2275. 34 Wojkowska, above n 2, 20. 58 Bryde, above n 5.
13 Chirayath et al, above n 11. 35 Ibid. 59 Connolly, above n 18.
14 Golub, above n 3. 36 Connolly, above n 18. 60 Nyamu-Musembi, above n 47.
15 S. Golub, Non-State Justice Systems in 37 W. Menski, Comparative Law in a Global 61 Mamdani, above n 29.
Bangladesh and the Philippines, paper pre- Context: The Legal Systems of Asia and 62 Nyamu-Musembi, above n 47.
pared for DFID (2003). Africa (2006). 63 Ibid.
16 CLEP, above n 2, 27. 38 A. Renteln, International Human Rights: 64 S. Farran, ‘Is Legal Pluralism an Obstacle to
17 Conference Report, Towards a New Universalism versus Relativism (1990). Human Rights? Considerations from the
Consensus on Access to Justice, Summary 39 See generally Mamdani, above n 29; P. Veit, South Pacific’ (2006) 52 (77) Journal of
of Brussels Workshop, 29-30 April (2010) 8 Africa’s Valuable Assets - A Reader in Legal Pluralism and Unofficial Law.
<http://www.soros.org/initiatives/justice/ Natural Resource Management, (1998) Veit 65 Nyamu-Musembi, above n 47.
 66 CLEP, above n 2. Traditional Law and State Judiciary in East 93 E. Drexler, Aceh, Indonesia: Securing the
67 Connolly, above n 18. Timor, Report Prepared for the United Insecure State (2008).
68 R. Schiller, ‘The Draft Legislation and States Institute of Peace (2003), 2. 94 Qanun are regulations issued by the
81 Ibid.
Customary Law’ (1969) 5 East African Law Acehnese provincial parliament. They were
82 JSMP, above n 78.
Journal. formerly known as Regional Regulations,
69 83 L. Yoder, Custom and Conflict: The Uses and
Ibid. yet under provincial autonomy, Qanun, an
70 R. Tanner, ‘The Codification of Customary Limitations of Traditional Systems in Acehnese term related to canon law, was
Law in Tanzania’ (1966) 2 (1) East African Addressing Rural Land Disputes in East adopted. While formerly denoting religious
Law Journal. Timor (2003). authority, Qanun as currently used means a
71 84 Hohe and Nixon, above n 80.
G. Woodman, ‘Customary law, state courts, Regional Regulation.
85 L. Grenfell, ‘Legal Pluralism and the Rule of 95 The mukim is a distinct Acehnese adminis-
and the notion of institutionalization of
norms in Ghana and Nigeria’, in A Allott and Law in Timor Leste’ (2006) 19 (305) Leiden trative structure that exists between the vil-
G.R. Woodman (eds), People’s Law and Journal of International Law. lage and sub-district levels and dates back
86 R. Perry, Engaging with Customary Systems
State Law: the Bellagio Papers (1985). to the 17th century. It usually combines a
72 A. Manji, ‘Land Reform in the Shadow of the of Law as a Means of Promoting the Rule of number of villages clustered around a cen-
State: The Implementation of New Land Law in Post-Conflict States (2009). tral mosque. See D. Fitzpatrick, Managing
87 Hohe and Nixon, above n 80, 24.
Laws in Sub-Saharan Africa’ (2001) 22 (3) Conflict and Sustaining Recovery: Land
88 S. Lowe, Evaluation of the ‘Providing Access
Third World Quarterly. Administration Reform in Tsunami-Affected
73 K. Deininger, Land Policies for Growth and to Justice—Legal Awareness at the Aceh, Asia Research Institute (2008).
Poverty Reduction (2003). Grassroots Level Project Timor-Leste, 96 Memorandum of Understanding between
74 See generally Chirayath et al, above n 11; Avocats sans Frontieres, Dili, Timor-Leste the Acehnese Governor and Chief of Police
Wojkowska, above n 2. (2007) 2. on the implementation of adat, on file with
75 89 Ibid 44.
A. Bryman, Social Science Research the author.
90 Ibid 26. 97 UNDP, General Guidelines on Aceh Adat
Methods (2001).
76 91 Ibid.
Ibid. Justice (2008). This document has not
77 92 Adat translates as customary law. Similar
H. Strohmeyer, ‘Policing the Peace: Post- been publicly released; however, it has been
Conflict Judicial System Reconstruction in critiques of the term customary law have made available through the consent of
East Timor’ (2001) 24 (171) University of been leveled against the use of adat. See D. UNDP. The original document is in
New South Wales Law Journal. Mearns, Looking Both Ways: Models for Indonesian and is on file with the author.
78 Judicial System Monitoring Programme Justice in East Timor, Australian Legal Translation into English has been
(JSMP), Overview of the Courts in East Resources International (2002). conducted by the author.
Timor in 2004 (2004). Undoubtedly, adat is a constructed con- 98 UNDP, above n 97.
79 K. Taylor-Leech, The Ecology of Language cept, shaped by Dutch colonial manipula- 99 Ibid.

Planning in Timor-Leste: A Study of tion and adapted to contemporary circum- 100 CLEP, above n 2.

Language Policy, Planning and Practices in stances. However, as it is widely used and 101 Chirayath et al, above n 11.

Identity Construction (2007). accepted across Indonesia, it will be adopt- 102 Nyamu-Musembi, above n 47.
80 T. Hohe and R. Nixon, Reconciling Justice: ed for this section.

66
 Chapter 4
CHAPTER 4
Reducing Injustice? A Grounded Approach
to Strengthening Hybrid Justice Systems:
4
Lessons From Indonesia
Samuel Clark and Matthew Stephens*

“To improve the quality of dispute resolution, justice must be maintained in individuals’
daily activities, and dispute resolution mechanisms situated within a community and
economic context. Reform should focus on everyday justice, not simply the mechanics
of legal institutions which people may not understand or be able to afford.”1

1. Introduction

In most, if not all, countries in the world, court-based adjudication of legal disputes is considered an
expensive and unwanted last resort.2 Alternative dispute resolution mechanisms are, as many
surveys and research attest, more commonly used and invariably more popular.3 And yet at the
same time, many of these “alternative” systems suffer (like courts) from systemic inequities that
reaffirm existing power relations to the detriment of the socially excluded — what Amartya Sen
describes as the “justice of fish”, whereby the big fish eat the little fish with impunity.4

The phenomenon of the unpopular and distant state, and the debilitated community institution is
particularly common in the developing world, where state capacity to deliver justice is undermined
by financial and human resource deficiencies, and communal harmony challenged by socio-
economic inequities and rapid social change. Therefore, on the assumption that effective justice
systems and means of dispute resolution are crucial to development, equity and poverty reduction,
what should be done in such a situation?

States have responded in various ways to the challenges of legal pluralism. These range from
complete abolition of informal justice institutions — whether this has been effective at the local level
is clearly a different question — to full incorporation, with many shades of partial recognition and
incorporation in between.5
67
Abolition was pursued by a number of newly independent states in the post-colonial era.6 Until recently,
international development agencies have also focused almost exclusively on building formal justice
institutions under the implicit assumption that customary arrangements will eventually wither away as
an inevitable consequence of modernization.7 Generally, these efforts have failed. Furthermore, and as
the excerpt above from the Australian Commonwealth Government indicates, the evolution of justice

* Samuel Clark is a DPhil candidate at the Centre for Socio-Legal Studies, University of Oxford. He worked for the Social
Development Unit of the World Bank from 2004 to 2009 on post-conflict reintegration, community development, local
governance and legal empowerment in Aceh, Indonesia and Timor-Leste, and continues to consult on these issues in
the Asia Pacific region. He is currently undertaking field research in Indonesia on legal mobilization and the
prosecution of corruption in the post-Suharto era. Matthew Stephens is the Regional Coordinator for the World Bank’s
Justice for the Poor program, based in the Philippines. They can be contacted at [email protected] and
[email protected]. The views expressed in this chapter are those of the authors rather than the institutions to
which they are, or have been, affiliated.
 even in the developed world is unequivocally in the direction of community-led processes such as
compulsory mediation, restorative and diversionary justice, and alternative sentencing.8

This article starts from the presumption that, in the contemporary reality of most developing
countries, no one system — state or non-state — can deliver justice. Rather than idealize one system
over another, a more realistic strategy is to focus on overcoming the specific injustices of both state
and non-state systems.

The article, therefore, broadly advocates for the creation of hybrid institutions through partial
incorporation, an approach that attempts to blend the strengths and mitigate the weaknesses of
formal and customary systems. This approach carries the challenge of marrying two systems that
draw on different normative traditions, as well as the normative and political challenge of identifying
comparative strengths and weaknesses.

These challenges, we contend, can be addressed by taking a “grounded approach” to designing

programs to strengthen hybrid justice systems. This approach is attuned to local needs and
opportunities, and focuses on reducing tangible instances of injustice in incremental steps rather
than attempting to achieve an ideal form of justice.9 Concepts and theory will be defined before
drawing on case study research from five provinces and a nationwide quantitative survey from
Indonesia to outline a grounded approach to reform. Specifically, five key steps are proposed: (i)
understand the historical and contemporary political and policy context of formal and customary
justice systems; (ii) analyze the strengths and weaknesses of formal and customary legal systems;
(iii) identify entry points for strengthening hybrid justice systems based on an analytical framework
of institutional change; (iv) realistically assess the opportunities for engagement on the entry points;
and (v) ensure a flexible and long-term commitment to implementation.

The article seeks to provide guidance to practitioners and policy-makers by prescribing a process of
engagement rather than any specific institutional arrangements or “quick fixes”. To achieve this, it
reflects on the establishment of a number of World Bank pilot programs in Indonesia.10 In the next
two sections, the basic steps of a grounded approach to engagement are illustrated by applying it to
Indonesia. Section four presents the historical and contemporary context; section five considers the
comparative strengths and weaknesses of Indonesia’s hybrid justice system and its constituent
institutions; and section six explains the entry points, opportunities and implementation modalities
that have been identified through a discussion of three current pilot projects in Indonesia. The final
section concludes.

2. Key definitions: Justice and hybridity

68 The title of this chapter includes a number of terms that need clarification. First, “reducing injustice”
requires some discussion of how the chapter conceptualizes justice. Second, the concept of
“hybridity” and the term “hybrid justice system” require definition.

2.1 Justice
Formal and customary legal systems tend to emphasize different concepts of justice, both in theory
and practice. Understanding these different conceptions and how they interact is critical to our
analysis. These different concepts are manifested in the underlying models of justice deployed (and
thus the objectives they seek to achieve) and the way in which these models are implemented.

Accordingly, models of justice are commonly divided into three main categories: retributive,
deterrent and restorative.11 Retributive justice focuses on the moral dimension of justice. It
emphasizes the notion that perpetrators of a crime or those who fail to abide by laws or customary
norms “deserve” to be punished for their wrongdoing. On the other hand, a deterrent view of justice
focuses on the instrumental dimension of justice. It emphasizes that punishment for wrongdoing is
 Chapter 4
necessary to prevent further violations of the law and to signal the boundaries of socially acceptable
behavior. Finally, the restorative view of justice focuses on the need to rebuild or restore relationships
and/or socio-economic status. This form of justice includes scope for compensation as a way of
correcting wrongdoing and achieving justice.

It has also been suggested that methods of justice can be divided into two categories: formal and
negotiated.12 The formal method arrives at its decisions — and therefore achieves justice — through
the strict application of formal legal statutes and procedures. By contrast, the negotiated method
arrives at its decisions through a process of negotiation. This could include a process of communal
discussion, where a violation and appropriate punishment is discussed openly and settled jointly,
but it can also manifest itself in ostensibly formal settings where a judge facilitates a negotiation
between the lawyers of two opposing parties.

It is evident that formal justice systems and customary systems neither exclusively focus on only
one model of justice nor a single means for the achievement of justice. Formal justice systems
generally use formal means and emphasize retributive or deterrent views of justice in their approach
to criminal law, but negotiated means and restorative views of justice are not uncommon in practice.
Indeed, many other elements of formal legal systems simultaneously seek to achieve restorative
objectives.13

Similarly, customary justice systems often use a combination of formal and negotiated methods to
achieve all three justice-seeking objectives. Many “informal” justice systems are in fact formal in both
procedural and substantive terms. Despite this overlap, many of the debates on the appropriateness of
formal versus customary justice systems hinge on assumptions that each system only delivers one
model or means of justice, or that some models or means are inappropriate for specific situations or
contexts. However, as these examples suggest, it is not possible to maintain the first position, and the
second rests on a normative assumption about the appropriate model and means in a given context or
situation. This chapter thus takes the position that both state and local customary institutions are
capable of delivering justice. Consequently, any attempt to reduce injustice must be based on
consideration of local practices and justice-seeking objectives.

2.2 Hybridity
The theoretical and descriptive legal literature conceptualizes hybridity in the context of justice
systems in three main ways. One approach understands a hybrid justice system as a situation where
two legal traditions mix in the same social field. These traditions are sometimes described as “mixed
jurisdictions” or “hybrid systems of law”, and are generally used to denote countries or jurisdictions
where civil law and common law traditions are both applied.14 Examples include Quebec, St Lucia,
Seychelles, Scotland, Louisiana, the Philippines and Sri Lanka.

A second, somewhat similar account, suggests that a hybrid legal system exists where “two or more 69
legal systems coexist in the same social field.”15 This explanation draws on the concept of legal
pluralism. One important distinction between this account and the first is that the former encapsulates
a broader range of legal traditions. The first approach is generally limited to the mixed application of civil
and common law traditions, whereas the legal pluralist conceptualization of hybridity allows for other
legal traditions, including customary and religious legal traditions. A second key distinction concerns
the jurisdictional scope. The first approach implies that both legal traditions apply to all, but that civil
law governs some sectors of society, and common law governs others, whereas the legal pluralist
account allows for different rules to be applied to different subsets of the population.16

A third conceptualization understands hybridity as a characteristic of an individual legal institution

rather than the justice sector as whole. In this way, both formal state and customary legal
institutions can be considered hybrid if they borrow from other legal institutions or function in a
hybrid manner, sometimes applying standard rules in a formal sense and sometimes negotiating
outcomes, drawing on non-state legal norms. This has been referred to as “internal hybridity”.17 This
 conceptualization flows from recognition that customary legal institutions have borrowed from
other legal institutions for centuries and that, in some places, they resemble their historical
antecedents only in a very superficial sense. Indeed, contemporary research from Indonesia and the
south Pacific region identifies a trend among customary authorities towards codification of rules
and structures so as to “be seen like the state”.18 It also flows from the empirical analysis of legal
systems in practice; analysis that suggest that legal systems rarely only pursue one justice objective
(or the same mix of objectives) or method, but rather, adapt their objectives and methods to the
local context and specific case circumstances. Similarly, the state borrows from non-state
normative traditions in a dynamic process of institutional development and change.

This chapter conceptualizes the justice sector in countries like Indonesia as hybrid in the sense of
the second approach (legal pluralism) and characterizes the individual systems that constitute the
sector as internally hybrid. The focus of this chapter is therefore on strengthening the plural justice
sector through both formal and customary justice systems.

3. Five steps of a grounded approach to strengthening hybrid justice systems

This section outlines five key steps for a grounded approach to strengthening hybrid justice
systems. The explanation of each step focuses on why it is important (the objectives or ends) and
how it can be achieved (the methods or means). The five steps are:

1. Understand the historical and contemporary context.

2. Analyze the comparative strengths and weaknesses of the constituent parts of the hybrid justice
system.
3. Identify entry points based on an analytical framework of institutional change.
4. Realistically assess opportunities for engagement on the entry points.
5. Ensure a flexible and long-term commitment to implementation.

Although the steps are presented sequentially, this is not to suggest that it is either feasible or
desirable to pursue the grounded approach in this manner; rather, we suggest that all five steps
should be considered from the outset of any new engagement with the hybrid justice system of a
given country or context.

3.1 Step 1: Understand the historical and contemporary context

The first step in developing a grounded approach to strengthening hybrid justice systems is
understanding the historical and contemporary political and policy context, as debated by policy
makers, academics and civil society.

70 Understanding these debates and policy decisions is important for three main reasons. First, it will
provide a sense of the opportunities available for strengthening hybrid justice systems. For example,
the Philippines’ compulsory mediation process at the village level, known as the Barangay Justice
system, emerged from a different political and historical context than that in Indonesia, where the
relationship between state justice institutions and local dispute resolution mechanisms is less
institutionalized.19 Understanding existing institutional structures and the policy imperatives that
drove them is crucial to any efforts to strengthen them. Second, it will help to narrow the focus of
engagement, a refrain repeated throughout this article. Third, it will help to prevent the “reinvention
of the wheel”. International development agencies, and even local non-governmental organizations
(NGOs), often lack institutional memory and tend to reinvent the wheel or transplant reforms from
other countries. The transplantation of legal concepts is not without merit;20 but zeal for the new and
foreign needs to be matched with an appreciation for the local and the past.

There are two main ways to build an understanding of the local historical and contemporary political
and policy context — the “text-based approach” and the “people-based approach”. As the name
 Chapter 4
suggests, the text-based approach is based on acquiring knowledge through texts, which includes
books, journal articles, newspapers, laws, regulations and reports. Since this approach is limited,
particularly in contexts that lack a strong writing culture, it is critical to balance it with a “people-
based approach”. This involves interviewing academics, politicians, researchers, activists and
communities engaged in justice and governance issues or securing background papers or briefing
sessions on the historical background and contemporary policy context. This may seem obvious,
but in some contexts, particularly in smaller countries where international agencies appear to
dominate the institutional landscape, international actors tend to consult only among themselves.21

As a final note in this subsection, it is important to be aware of the biases that one’s background can
have on the kind of texts and people one seeks out. For example, a lawyer might tend to place
emphasis on laws, lawyers and the judiciary; a political scientist on policy, politicians and
governance structures; and an anthropologist on the views of village-level actors and institutions.
Although focus is necessary, it is important to think beyond one’s background when designing
programs to strengthen hybrid justice systems. For example, decentralization and village
administrative reforms in Indonesia have had a significant influence on customary legal systems —
this would not be apparent if one focused on statutory legal reform or Supreme Court regulations.
Similarly, community development programs, which may be launched with no immediate aim of
influencing customary justice mechanisms, often introduce norms and procedures that have
precisely that effect.22

3.2 Step 2: Analyze the comparative strengths and weaknesses of the hybrid justice system
The second step of a grounded approach is to analyze the comparative strengths and weaknesses of
the hybrid justice system and its constituent institutions in practice. This is important for three main
reasons. First, institutional arrangements as written on paper are likely to be significantly different from
their implementation in practice. Second, and as suggested by the discussion of justice and hybridity
in the previous section, it is likely that the hybrid justice system, and its constituent institutions
(generally, the formal state justice system and local customary legal systems), deal with different
problems with varying levels of success. Such an analysis will, therefore, help to avoid the simplistic
platitudes of “formal equals good, customary equals bad” and vice versa. Third, an analysis of strengths
and weaknesses will facilitate the identification of priorities for strengthening hybrid justice systems. It
is unrealistic to expect that external programs (or even local initiatives) will establish perfect
institutions. It is more realistic to address a particular weakness or build on a particular strength rather
than wholesale reform. As Amartya Sen has recently suggested, the focus should be on reducing
injustice rather than attempting to achieve an ideal form of justice.23

There are two broad ways to implement this step. One involves undertaking original field research on
the strengths and weaknesses of hybrid justice systems. Another simpler and more efficient
method involves tapping available research and findings. In some countries, there is substantial
empirical research on the workings and relative strengths and weaknesses of formal and customary 71
legal systems. In others, however, research is weak or excessively formalistic and based on
romanticized notions of customary systems. In Indonesia, for example, the World Bank decided that,
although there was substantial historical research on adat (customary law) and dispute processing
at the local level, there was little empirical research on these institutions because the country had
undertaken major democratic and administrative reforms in the late 1990s and early 2000s.
Consequently new empirical research was launched.

If empirical research on hybrid justice systems is insufficient, it is important that methodological

rigor and multi-disciplinary perspectives are brought to bear in research design. Often those
charged with developing strategies are lawyers or diplomats with limited empirical research
experience. The authors also recommend that any new research be as specific as possible. This will
help to ensure that research findings identify specific injustices and concrete, incremental steps that
can be taken to reduce them. If research questions are too broad — for instance, Are hybrid justice
systems in Indonesia gender-sensitive or not? — there is a danger that findings will focus on
 unattainable ideal forms of justice rather than overcoming tangible injustices. Research should,
therefore, focus on: a particular type of dispute (land, divorce, labor, enforcement of community
contracts); a particular type of problem (gender representation, inter-village or inter-ethnic issues,
court-community relations, community-investor relations); a particular type of institution (district
courts, village institutions) or a particular region or location (a province, post-conflict contexts, areas
with forest land or plantations, etcetera).

3.3 Step 3: Identify strategic entry points based on an analytical framework

The primary objective of this step is to identify entry points for strengthening a hybrid justice system
so that its constituent institutions deliver an appropriate mix of punitive, deterrent and restorative
justice. In this chapter, an “entry point” is interpreted as a strategy for addressing a weakness or
reinforcing a strength identified and prioritized in the previous step — it denotes how one addresses
the problem, not the problem itself.

The identification of entry points requires an analytical framework for thinking strategically about
institutional change. One problem with substantial research on and analysis of customary and
hybrid legal systems is how they romanticize and present these institutions as “centuries-old”, when
in fact, like any institution, many are often adapting to internal demands and changes in the external
environment.24 This is reflected in the Indonesia context, for instance, in the call by many advocacy
groups and some local governments for blanket state recognition of customary justice systems,
often overlooking systematic biases within these systems against ethnic minorities and women.25
By contrast, many women’s NGOs seek, at the other extreme, to completely bypass customary
justice systems, something that is not always feasible and that overlooks substantial inequities and
injustice in the functioning of formal legal systems.26

Once the exotic nature of customary justice institutions and the presumed superiority of formal state
justice systems is stripped away, it is apparent that they are just as susceptible to standard institutional
or sociological analysis as any other institution. They involve the basic building blocks of any social
phenomenon: actors or decisions, rules and norms, incentives and preferences, and resources and
power relations. Thus, standard analytical frameworks can be legitimately applied to hybrid justice
systems to facilitate strategic thinking about how a particular issue or weakness can be addressed.

Helmke and Levitsky propose one such framework in a recent chapter on formal and informal
institutions.27 They identify four main mechanisms of change: (i) institutional design; (ii)institutional
effectiveness; (iii) social values and norms; and (iv) changes in the external environment that alter
the distribution of power and resources within communities. This framework provides our basis for
thinking strategically about entry points for strengthening hybrid justice systems (see Table 1).

72
 Chapter 4
Table 1: Analytical framework for identifying entry points
Mechanism of change Pace of change Examples Entry point
Change in institutional Often relatively rapid Establishment of the Policy dialogue, working
design Barangay Justice System in groups, design workshops,
the Philippines; village-level legal drafting
codification of customary
legal systems

Change in institutional Variable Provision of training to Procedural and skills

effectiveness judges or community training, resources, legal
leaders aid, organizational
incentives

Change in social values Generally slow Changes to kinship-based Information campaigns,

and norms norms of reciprocity; grassroots workshops,
changes to community education, etc.
values on gender relations

Change in power relations Generally slow Changes to the economic Group formation, economic
and resource distribution role of women, and other empowerment, access to
marginalized groups justice initiatives, etc.

3.3.1 Institutional design

The first mechanism of change relates to institutional design. In the context of hybrid justice systems,
this mechanism — one that seeks to change formal rules and institutional structures — can apply to
both the state legal system and formalized elements of local customary mechanisms. For example, our
research in the Indonesian province of West Sumatra identified one village where a local woman
successfully campaigned to change the local rules governing customary land to prevent the sale of
matrilineal land by male clan heads.28 We identified a number of local government regulations and
court circular letters on the recognition of decisions of non-state justice institutions in the courts. Our
research also demonstrated that this mechanism of change can form a part of initiatives to formalize
customary legal systems. In the province of West Nusa Tenggara, for instance, a group of villages on the
island of Lombok has formalized institutional structures and codified local rules for the delivery of local
justice; in some cases, this involved making substantive changes to the design of local institutions.29

3.3.2 Institutional effectiveness

The second mechanism of change is to improve the effectiveness of the institutional arrangements in
protecting the rights of the vulnerable. This mechanism could relate to either state or customary legal
systems. It should be noted, however, that efforts to improve one institution are likely to affect the operation
of the other, depending on their interaction and relationship. Efforts to improve the accessibility of the police
and their capacity to handle domestic violence, for instance, could well induce victims, and possibly also 73
community leaders, to abandon the use of customary legal institutions for this type of problem.

Improving the effectiveness of institutions could involve a number of entry points. An obvious one is
the provision of skills training to key justice sector actors, such as judges, prosecutors, the police,
community leaders, religious leaders and women’s leaders. The content of such training would
depend on the specific strengths and weaknesses identified in the previous step. It could include
mediation skills for judges and/or community leaders, training on how police should handle
domestic violence complaints, or facilitating opportunities for state and non-state justice actors to
interact. Another entry point is the provision of resources to ensure that established regulations and
guidelines are actually implemented. Such an entry point would obviously only be effective if the
previous analysis clearly indicated that the bottleneck was the lack of resources and not other
factors such as institutional incentives or informal norms.
 3.3.3 Social values and norms
The origin and evolution of social values and norms is complex.30 Yet generally, changes in social
values are slow and incremental, and not prone to deliberate external intervention. For example, it
might take decades for social norms of punitive justice for rape and sexual abuse to strengthen to
the point that they override norms of kinship.31 In some circumstances, as Helmke and Levitksy
have suggested, some social norms can actually change rapidly when a “sufficiently large number
of actors become convinced that a new and better alternative exists, and if a mechanism exists
through which to coordinate actors’ expectations”.32 However, overall, the strength and resilience of
local norms and beliefs emphasize the need to understand local authority structures at the village
level. Thus, entry points for change are likely to be more effective when sponsored by local
authorities or leaders.

3.3.4 Change in power relations

The fourth mechanism of change focuses on the role that the distribution of power and resources
has on the implementation of state and customary legal systems. This mechanism is best illustrated
with an example from the Indonesian province of West Sumatra. In Batu Gadang, a village in the
province, a women’s group was established to run small business activities, but later evolved to
become active in mediating community disputes. After demonstrating success in this endeavor,
members of the group managed to secure an allocated seat in the traditional customary law council,
which was previously not possible for women. At least part of their success was due to financial
independence, which significantly improved their bargaining position on issues of institutional
design and decision-making in the village.

This mechanism of change highlights the importance of thinking laterally about entry points for
engaging hybrid justice systems. It indicates that activities not directly related to strengthening
justice institutions can have a significant impact on their operation and the justice-seeking
objectives they achieve. Social mobilization, group formation and economic empowerment can
change power dynamics, improving the bargaining position of justice-seekers vis-à-vis both the
state and customary legal systems and, in turn, carry the potential to drive institutional reform.

3.4 Step 4: Realistically assess opportunities for engagement in the entry points
The main objective here is to stand back and double-check that the strategic entry points identified in
the previous step are realistic. This is important regardless of whether the entry points are policy-
focused (e.g. institutional design changes), or program-focused (e.g. provision of skills training). For
example, institutional design changes require significant political buy-in, irrespective of whether they
are focused on regulatory reforms at the national level or changes to the way customary-based
mechanisms are structured at the village level. Similarly, efforts to improve skills will have little influence
if social norms and unequal power relationships compromise their application in practice.

74 Ensuring that entry points identified in the previous step are realistic requires detailed and careful
identification of local partners who have the understanding and the influence to drive change. If local
actors — national or local politicians, religious leaders, civil society organizations or community
leaders, etcetera — are not genuinely interested in addressing the weaknesses, then external efforts
are likely to prove fruitless. Care needs to be taken, however, when a possible partnership involves
the provision of financial resources. Some NGOs or community leaders may be prepared to claim
commitment to reform if it means gaining access to resources.

3.5 Step 5: Ensure a flexible and long-term commitment to implementation

Occasionally, there are opportunities for quick wins, but these are the exception, not the rule. As
indicated in step three, many of the possible entry points involve slow processes of change. Thus,
the final step of the “grounded approach” is to manage expectations and ensure that the timing of
any initiative is appropriately adapted to the mechanism of change.
 Chapter 4
For example, if the entry point is “social values and norms”, then a long-term and flexible
implementation modality is necessary. One-off workshops at the local level are unlikely to have any
significant effect. By contrast, putting resources into a civil society network of women’s groups that
would provide support for literacy, education, financial independence and legal awareness over an
extended period is more likely to facilitate change.

The previous two sections provided the theoretical outline of a grounded approach to strengthening
hybrid justice systems. The next three sections illustrate this approach by summarizing the results
of recent research by the World Bank on non-state justice in Indonesia.33 This includes a description
of the historical background and contemporary policy context (step one) and an analysis of the
strengths and weaknesses of the hybrid justice system in Indonesia (step two). Finally, to
demonstrate how the grounded approach can be translated into practical activities on the ground
(steps three, four and five), section six presents a summary of some of the pilot programs that the
World Bank is supporting across Indonesia with a broad set of local partners to address weaknesses
and build on strengths identified in section five.

4. The historical and contemporary context of hybrid justice systems in Indonesia:

Colonization, independence and regional autonomy

This section briefly summarizes historical and contemporary approaches to customary legal
systems in Indonesia. It highlights how the advent of regional autonomy in the post-Suharto era has
generated significant opportunities for strengthening Indonesia’s hybrid justice system at both the
national and local level, but that it has also brought out the weaknesses of current arrangements.
This paves the way for a broader discussion of the strengths and weaknesses of hybrid justice
systems in the following section.

4.1 Historical context: Colonization and independence

When Indonesia achieved independence in 1945, it inherited a justice system combining traditional,
colonial and Islamic legal influences. The Dutch administration had dealt with the plurality of customary
norms and institutions by establishing a hybrid legal system that applied different laws to different
racial groups. In simple terms, Europeans were subject to Dutch law, and Indonesians to traditional
customary or adat law.34

In institutional terms, the status of village justice mechanisms also varied, reflecting the tension
between, on the one hand, recognition of diversity and, on the other, the desire for legal unity
and “modernity”. Until 1874, the Native Courts operated in accordance with traditional
customary (adat) law and procedure. From 1874-1935, official recognition for village justice was
withdrawn, although it continued to operate in practice. In 1935, the colonial government
rehabilitated village justice by requiring first instance state courts to take the prior decisions of 75
Adat Councils into account.

When the new republic was formed in 1945, national policy promoted a uniform legal system.
Institutionally, legal pluralism was viewed as inimical to nationhood and modernity. Nonetheless, the
1945 Constitution and subsequent amendments have provided conditional recognition of traditional
customary law.35 This level of recognition is very limited, however: judges are required by law to
“[e]xplore, follow and understand the legal values and sense of justice which exists in society”.36
While judges are obliged to take into account the outcomes of non-state justice deliberations, in
reality they are free to ignore or pay lip service to this requirement, and indeed many do. Thus,
despite the legal protections and policy rhetoric, the sum of the above has been that historically,
“Adat is [a] default legal source, applicable only informally or where regulations are silent.”37 At least
from the state’s perspective, written state law will always trump customary law.
 In addition to legal and policy constraints on the recognition of customary norms and institutions,
the Indonesian Government imposed a uniform model of village governance, based on Javanese
structures, through Law 5/1979 on Local Government.38 This restricted the authority of customary
leadership across the country.

4.2 Regional autonomy and the Adat revival

The formal position of customary local institutions changed in 1999 when post-Suharto Indonesia
instituted a broad process of regional autonomy. Law No. 22/1999 on Regional Governance
authorized district governments to reconfigure village governance structures — including dispute
resolution mechanisms — along inclusive and democratic lines. Reflecting a spirit of autonomy, the
law established democratically elected village parliaments and devolved a greater degree of
executive authority. On the “judicial” side, article 101(e) gave binding authority to village heads,
together with the Adat Council, to resolve disputes.39

Through local regulations, a limited number of local governments have sought to recognize and raise
the profile of local customary actors, institutions and norms. Generally, the provinces and districts
that have taken advantage of the national policy shift have sought to revive what H Patrick Glenn has
called “the old ways”, promoting local justice institutions dominated by male, indigenous elites.40
This revival of customary institutions has been particularly evident in locations outside Java,
primarily in areas where religious or traditional cultural identity has remained strong, or where
ethnic conflict has been experienced since 1999. Some examples of local governance reform in the
post-Suharto era are explored below.

4.2.1 Maluku Province

In Maluku, a province in Eastern Indonesia, the regional government has regulated a return to
traditional village structures. At the provincial level, Regional Regulation No. 14/2005 on the Return
to the Negeri enhanced the dispute resolution authority of the raja (literally “king”), who represents
the highest authority and is often both the traditional and the elected leader of the village. At the time
the World Bank undertook research in this province (2005-2007), only a handful of districts had
issued their own regulations under the provincial umbrella.

In some villages, this amounts to recognition of continuing, well-organized institutions. For example,
in Pelau, a village in Central Maluku district, the local adat dispute resolution structure is well-
defined. It incorporates all key elements of local power into one body: the raja; the Islamic priest or
penghulu, who represents religious authority and manages family disputes; and the heads of village
clans, covering the community at large. In other villages, the system is less defined and more
informal. In these locations, the regional autonomy regulatory reforms have had little effect and local
dispute resolution mechanisms continue to operate in similar ways — families attempt bilateral
resolution, moving up to the local hamlet or clan leaders, and then the village head if resolution is not
76 possible. Many of these regulations and village practices make no distinction between legislative,
executive and judicial functions, as is common in small-scale communities.41

4.2.2 West Sumatra

In West Sumatra, a province in Western Indonesia, indigenous Minangkabau ethnic identity
remained strong despite the imposition of uniform Javanese village structures under Law 5/1979 on
Local Government. This law created 3,138 desa — the Javanese term for village — replacing 543
nagari — the territorial, social, political and independent self-governing entity of the Minangkabau
that ideally comprised four exogamous matrilineal descent groups. However, a provincial decree
followed in 1983, protecting the status of the nagari as an adat entity.42 This stipulated that the
Nagari Adat Council (Kerapatan Adat Nagari, KAN) would continue as the highest authority
regarding adat and act as a mediator and judge in adat cases, particularly regarding adat land.43
According to some informants, the authority of the KAN in relation to the new village administrative
structure caused difficulties such that in some locations, the role of the former was gradually
confined to ceremonial functions only.
 Chapter 4
Following the institution of regional autonomy, the provincial and district governments of West
Sumatra moved rapidly to restore the full authority of the nagari, including strengthened recognition
of local customary dispute resolution institutions.44 The Village Customary Council (Lembaga Adat
Nagari, LAN), which replaced the KAN but still comprises lineage heads, is stipulated as having
official responsibility for village-level dispute resolution, although in practice, the village head also
discharges this function. In many locations, the LAN has become increasingly involved in all aspects
of village governance such that it has displaced the village parliament or other legislative bodies as
designated in district regulations.

4.2.3 Central Kalimantan

In Central Kalimantan, a province on Indonesian Borneo, a number of regulations have been
passed to strengthen recognition of the damang, a local customary leader traditionally
responsible for dispute resolution.45 This has been mostly a rhetorical exercise, however, which
concerns more the reassertion of indigenous Dayak ethnic identity in the aftermath of bloody
conflict between Dayaks and transmigrant Madurese over the 1999-2002 period than the
strengthening of local justice.46

The regulations have not been backed by additional training or support for damang to discharge
their dispute resolution function, with the result that the level of community respect for the damang
is mostly a product of individual personal characteristics rather than institutional strength or
legitimacy. Indeed, the fieldwork undertaken in Central Kalimantan between 2004 and 2006
indicated that damang were active and provided an important dispute resolution service to
communities in some places, but were moribund or purely opportunistic in others.

4.3 The Indonesian approach: Partial incorporation?

Despite considerable variation across the provinces, the overall trend in Indonesia has been a policy
shift towards what Connolly dubs “partial incorporation”, where informal and formal justice systems
operate relatively independently, but with local dispute resolution mechanisms receiving
recognition, some resources and oversight from the state.47

Local governments have led these reforms. In addition, as the regional examples above illustrate,
in a number of provinces and districts, a healthy debate has evolved on the appropriate role and
form of customary justice institutions. In this debate, few question whether village-level justice
systems are important, but many query whether the adat revival is appropriate for strengthening
justice at the community level.48 Since Adat institutions tend to be dominated by male,
indigenous ethnic elites, they are often ill-equipped to handle the legal concerns of minority
groups and women. Hence, some local actors argue for a new form of local justice that better
accommodates the modern realities of ethnic heterogeneity and constitutional protections
against discrimination on the basis of gender, race and religion. Furthermore, democratic reforms
and the opening up of political space more broadly has led to an increased role for civil society 77
groups in customary dispute resolution and governance institutions through capacity-building,
research and advocacy. This has brought a range of different voices and perspectives into policy
dialogue on this issue.

This chapter interprets this contemporary policy context as an opportunity, but acknowledges that
partial incorporation is not without problems. First, there is significant variation in the effectiveness
of these newly recognized local institutions. Second, judges required to take into account local
customs and the decisions of these institutions often do not understand them. Finally, there is also
the risk of “over-formalization”. In the process of recognizing local institutions, their very advantages
— namely, flexibility to match process, remedy and sanction to local realities — could be
undermined. Codification of norms also risks locking in one person or group’s interpretation of local
norms when these are usually contested. The next section turns to a discussion of the strengths and
weaknesses of these current arrangements.
 5. The practice of local justice in Indonesia: Strengths and weaknesses

Developing a strategy to strengthen hybrid justice systems requires an understanding of how its
constituent institutions deliver dispute resolution services in practice and an understanding of the
core strengths and weaknesses of these arrangements. This section presents some of the key
findings of World Bank research on local dispute resolution and justice in Indonesia, undertaken
between 2003 and 2007.49 This research employed a mixed methods approach combining
qualitative and quantitative techniques to achieve depth and breadth of analysis. In-depth interviews
and focus group discussions were undertaken at the provincial, district and village levels in five
provinces, generating case studies of over 30 disputes. The research also drew on the nationally
representative 2006 Governance and Decentralization Survey 2 (GDS2), which included a number of
questions on dispute resolution and conflict.50

5.1 An overview of hybridity in practice

Villagers in Indonesia with a grievance have, at least hypothetically, a range of options or “paths to
justice” open to them. First, they can attempt to resolve the dispute themselves. Indeed, the majority
of disputants attempt bilateral resolution. Second, the disputants can seek the mediatory or
adjudicatory assistance of local community leaders. This usually includes hamlet heads, village
heads, religious leaders as well as other customary and influential figures. The third option is to
report the matter to the police. This is common for serious criminal offences, particularly when
violence is involved or likely to occur. Fourth, and finally, the disputants can report the case to the
court or prosecutors’ office. This is rare. Generally, a disputant begins with the first option and moves
up the hierarchy of authority and influence until a satisfactory outcome is reached.

Overall, the vast majority of disputes are resolved either bilaterally or by village officials or
community leaders. Figure 1 shows that in 2006 village officials (mostly hamlet and village heads)
and community leaders (mostly religious and traditional customary leaders) are the most active
dispute resolution actors, involved in the resolution of over 40 percent and 35 percent of disputes,
respectively. The survey also highlights the active role of police in dispute resolution.

Figure 1: Informal and formal actors in Indonesia in dispute resolution

Village government

Community/adat leader

Police

Family member/friend
78
Don’t know

Prosecutor

Paralegal

District government

Lawyer

NGO

0 10 20 30 40 50

Source: GDS Survey (2006) Percentage

 Chapter 4
It would be incorrect to suggest, however, that the four pathways noted above represent a distinct
dichotomy between state and customary institutions. Indeed, the cases researched in Indonesia
demonstrate significant interaction between state and customary institutions. Specifically, the
research suggests that state and local customary institutions interact in two main ways – direct and
indirect. Direct interaction occurs when: (i) the formal system becomes directly involved in handling
a case that has passed through the informal system through a process of “appeal”; or when (ii) a
dispute is simultaneously processed through both formal and informal mechanisms. The research
also indicated that even if the formal system does not directly handle a case, it can indirectly play an
important role in informal dispute processing. This occurs when: (i) formal justice actors act as
informal actors (most prominently when police mediate crimes); or more commonly when (ii)
informal justice actors or disputants use the formal justice system as a point of reference or source
of norms in informal justice proceedings; and, vice versa, when (iii) formal justice actors use the
customary justice system as a point of reference or source of norms.

This hybrid arrangement, where dispute resolution and justice-seeking are shared between formal
state and local customary institutions, has advantages and disadvantages, as discussed below.

5.2 Strengths of Hybrid Justice Systems

5.2.1 Accessibility and responsiveness

Some of the strengths are clear and simple, such as physical accessibility. Neighborhood heads, village
heads, adat leaders and religious leaders are based in the village, known to community members and
accessible. By contrast, the police and the courts are often located in distant district capitals.

A concomitant strength is speed of action. Lengthy resolution processes can impact on the
livelihoods of the poor, particularly where economic rights are at stake. At times when violence is
imminent between disputing parties or groups, as in several cases researched in East Java, rapid
action is also necessary. In cases that reached resolution, the process was normally quick. A case of
manslaughter in Palangkaraya, Central Kalimantan, was resolved in three weeks, and a fight in
nearby Kuala Kapuas in two (see also Case Study 1). Most cases in East Java and Maluku were also
handled within two to three weeks or less. Cost is another important consideration. For most of the
cases studied, there were no case filing or hearing fees.51

Case Study 1: A fistfight fixed fast52

Nuri is a farmer from a rural village in Lampung Province. One day, his son got into a fight with a
school classmate. The child’s father stepped in and beat Nuri’s son.

Rather than report the case to the police, Nuri approached Parmin, the hamlet head, and Bejo, a
paralegal under a program run by a local legal aid NGO. As Nuri said, they were known as people 79
“who can resolve problems”. Parmin and Bejo called the parties together at Parmin’s house, talked
through the problem and were able to resolve it quickly and peacefully through an acknowledgment
of fault and an apology. Nuri categorically said that problems taken to the police never turn out well.
“If you take a problem to the police,” he said, “they might beat you, lock you up. There’s no control.”

5.2.2 Formal actors act informally to overcome power imbalances

The ability of the state to work with informal actors extends the “shadow of the law” downwards,
bringing the authority and power of the state down to the village level. This can assist enforcement
by backing social legitimacy with state authority.

As noted above, the police are often involved in dispute resolution. Yet, as clearly shown in Figure 1, other
actors in the formal system, such as prosecutors and lawyers, are rarely involved. This demonstrates
 that a report to the police does not immediately trigger formal legal action. Indeed, police action often
takes the form of mediation or the provision of security at village mediations.53 The police sometimes
actively convince or instruct the disputants (or just the reporting disputant) to report or revert to village
leaders rather than pursue their case through formal legal channels. The presence of the police and the
inherent threat to escalate a case to the formal system often provides strong motivation to mediate
conflicts at the local level. In this way, the involvement of the police effectively casts the “shadow of the
law” over informal justice proceedings and outcomes. For example, in Case 2, the police were closely
involved in the informal resolution of a street fight in Madura, East Java, by protecting the victim,
participating in the negotiations and, finally, guaranteeing enforcement.

Case Study 2: Street fight turns ugly

One afternoon in the village of Blumbungan, the streets were full as a procession of pilgrims
returning from the Hajj passed through the town. At an intersection, a motorbike rider overtook a
car waiting at a traffic light. The car then turned right without looking, crashing into the motorbike.
Wardi, who had been watching the procession, rushed to help the motorbike rider and shouted at
Paidi, who was driving the car, “If you’re going to drive a car, be careful, don’t be so reckless. This
is what happens when you speed.” Feeling insulted and humiliated in front of the crowd, Paidi
jumped from his car and began to punch Wardi. The fight was short-lived, as some people
stepped in to separate the two. Paidi returned home, while Wardi remained at the procession.

But Paidi wasn’t finished yet. Still enraged by the insult, he returned to the scene, this time
carrying a kitchen knife and backed by his father. He attacked Wardi, threatening to kill him.
Standers-by separated the two again, but Wardi reported the incident to the local police. After
collecting evidence from witnesses, the police initially detained Paidi in the local police cell. They
then called a local Islamic priest (kyai) to attempt peaceful resolution without a formal police
report. However, Wardi refused.

A few days later, Paidi reported the matter to his village head. The village head proposed to call a
community meeting to resolve the problem. Wardi agreed to attend. Shortly thereafter, the village
head called together a neighborhood leader, the village military officer, a member of a local gang
and a number of other community leaders, all from Paidi’s village. They brought with them a pre-
prepared letter of agreement in which Wardi agreed to drop his police complaint.

Wardi felt intimidated, particularly by the presence of the gang member and military officer.
Initially, he refused to cooperate. Finally, after much discussion, Wardi agreed to resolve the issue
informally, providing that a letter of agreement was witnessed and signed at the police station. In
this way, Wardi managed to secure an informal guarantee of no further reprisal, his security
ensured by the police. Nonetheless, the outcome of this case was not fully fair — it was clear that
80 Wardi had been pressured into an outcome that did not satisfy his demands for punitive justice.

5.2.3 Ability to restore harmonious relations

Another important and related factor is the ability of non-state justice to restore harmonious
relations. According to a survey undertaken by The Asia Foundation, the majority of respondents
who chose informal justice cited the prospect of maintaining communal harmony as their main
motivation.54 Informal justice actors are able to achieve this by virtue of their local authority and
flexibility of norms, processes and sanctions. People seek assistance from their village heads,
religious and traditional leaders precisely because they possess social legitimacy in the village
milieu. They are not neutral and independent actors (as judges are required to be), but rather, they
are directly involved in the day-to-day life of the village and are familiar with the social and political
background of disputes. Separating dispute resolution from village governance, politics and social
relations is something of an artificial exercise that local actors do not engage in.
 Chapter 4
5.2.4 Flexibility to balance justice-seeking objectives
Cooperation between the constituent institutions of the hybrid justice system can facilitate
balancing of the objectives of punitive, deterrent and restorative justice. Direct interaction between
informal and formal disputes often involves compromise and negotiation between the two systems,
which sometimes have different imperatives. A manslaughter case from Kalimantan illustrated how
formal and informal systems can successfully cooperate in order to balance these imperatives. In
this case, the families of the victim and the perpetrator reconciled and restored relations through
adat processes; the court delivered retributive or deterrent justice through a prison sentence. A light
sentence was imposed, since the judicial panel took into account the adat process that the families
had undertaken.55

5.2.5 Providing potential pathways to accountability

The ability of disputants to “appeal” customary justice decisions to the formal system acts as a form
of accountability to a system that arguably trumps local values and customs. Just as cases are
appealed through the formal system up to the Supreme Court, cases can be “appealed” from the
informal to the formal. This can be conceptualized as a “reactive” form of oversight, triggered only
when a disputant submits a complaint to the court that has already been handled through informal
mechanisms.56 In Case Study 3, a disputant, dissatisfied with an adat sanction that effectively
outlawed him from having an opinion on whom his daughter should marry, appealed the adat
decision to the District Court. In this case, the formal system acted as an oversight mechanism of
the adat process.

Case Study 3: Heavy adat fines are “appealed”

Haji Anggeng is a prominent political figure and member of the Regional Parliament in West
Lombok. He is from Tanjung sub-district, but lives in the provincial capital of Mataram because of
his political activities. In February 2002, his daughter Linda was “kidnapped” by Sahrudin, a
young man from a nearby neighborhood.57

The following day, Sahrudin’s family asked the hamlet head to officially inform Anggeng of his
intention to marry Linda. According to a witness at one of these meetings, Anggeng gave his
blessing, subject to the payment of five million Rupiah (approximately US$500) as
“compensation” for the kidnapping. However, two days later, Anggeng visited Linda at Sahrudin’s
house to verify her desire to marry. He also queried the capacity of Sahrudin’s family to look after
her financially. The next day, Linda left Sahrudin’s house and, upon an investigation by the village,
was found at her father’s house in Mataram. This was interpreted as a violation of proper adat
marriage procedures.

That afternoon, the hamlet head, religious leaders and neighborhood head held a musyawarah 81
(community meeting) to consider the matter. At this meeting it was decided that Anggeng had
violated adat. A heavy fine was handed down, including the payment of two goats, food and a sum
of money to be distributed to the poor. Anggeng rejected these fines and took the case to the
District Court.

In court, Anggeng objected to the procedures, decision and sanctions of the adat institution. The
court determined that the fines were invalid, not on the grounds that the adat council had acted
beyond its jurisdiction to hand down such a severe sanction, but that the sanction was not
consistent with local adat. On this reasoning, the court would have upheld the sanction if it were
in line with local adat.

In response, the adat council simply increased the sanctions further, including evicting Anggeng
from the village for three years and denying his civil rights and role in adat functions. However, a
 combination of the court decision and Haji Anggeng’s powerful position meant that the adat
sanctions were never enforced and have had little impact on Anggeng’s ability to participate in
village life. Nonetheless, the Adat Council’s refusal to acknowledge its subordinate relationship to
the court does highlight the difficulties that formal institutions face in ensuring the accountability
of traditional systems.

5.3 Weaknesses of hybrid justice systems

Social authority may well be the key strength of informal justice, but its unchecked exercise
internally and its relative impotence outside the village milieu are also simultaneously its core
weaknesses.58 Along these lines, the research in Indonesia focused on three such weaknesses: the
resolution of disputes involving the interests of women; inter-communal groups; and external third
parties. The research also identified weaknesses where customary institutions overlooked punitive
and deterrent justice-seeking objectives, and conversely where formal state institutions enforced
punitive sanctions that violate human rights and constitutional norms.

5.3.1 Failure to protect the rights and interests of women

Arguably, local justice institutions do not protect and serve women’s interests well.59 Rather than
balancing interests, they tend to reinforce existing social norms and power relations. Divorced as
they are from local authority structures, women’s interests are often expendable; there is limited
social or political return in protecting them. This is both caused by, and reflected in, women’s lack of
representation in local dispute resolution mechanisms and a paradigm of the objectification of
women’s rights. Consequently, many women’s legal issues are either ignored or not taken seriously,
as illustrated in Case Studies 4, 5 and 6.

Case Study 4: Ibu Marnis’ land is sold by her brother: Sumpur, West Sumatra
Ibu Marnis and the other women in her family discovered that, in order to pay a debt incurred by
his son, their maternal uncle (mamak) was planning to sell off lineage land without the required
consent of the women. When they objected, the mamak threatened them verbally and physically.
They appealed to the four lineage elders (ninik mamak) to urge their mamak not to sell the land.

But the ninik mamak supported the mamak and the sale went ahead. They were more concerned
about the potential embarrassment the mamak would feel if his family could not repay a debt
than the impact on the women as owners of the land. The women were pressured to sign the
agreement and ultimately did so, but only on condition that no further lineage land be alienated.
The mamak nonetheless continued to sell more lineage land the year after. The mamak is now
dead but, more than 20 years later, Ibu Marnis is still using her savings to buy back the land he
82 sold off.

5.3.2 Inter-communal conflict

The authority of customary legal systems rarely extends beyond its own sphere of influence, be it
territorial (village and neighborhood heads), clan-based (adat leaders) or social (religious leaders).
Furthermore, trust and social sanction are crucial to the sustainability of mediated agreements.
These dual factors — the inability to project social authority and lack of social trust — severely
compromise the ability of village actors to resolve inter-communal disputes.

This weakness is at times resolved through cooperation with state authorities such as the police, as
noted above. However, some village leaders are reluctant to rely on these actors. Moreover, state
authorities themselves are often reluctant to intervene or simply ineffectual. Our research identified
a number of unresolved inter-communal disputes, including an extraordinary example from Lombok
 Chapter 4
in West Nusa Tenggara Province, where two villages had built a three-meter high wall between them
to prevent conflict that had claimed tens of lives over the previous decade. The lack of legitimate fora
for communication and conciliation across local boundaries can lead to a clash of values and see
minor disputes become major violent conflict.

5.3.3 Disputes involving the interests of powerful third parties

Indonesia’s hybrid justice system and its constituent institutions are rarely able to overcome
significant power imbalances at play in disputes pitting villagers against powerful third parties, such
as forestry companies, palm oil plantations, factories and other major private sector interests. The
research found that these types of disputes are increasingly common. This is particularly the case
in rural areas where some newly empowered district governments are encouraging the expansion of
extractive industries into traditional customary land.60 Furthermore, although there are some signs
that local communities are learning to self-organize and take on vested interests encroaching on
their land rights (often supported by advocacy NGOs), both the former policy of rhetorical
recognition and the current regime of partial incorporation do not provide a strong basis for the
protection of custom-based rights vis-à-vis powerful external parties. Indeed, village leaders are
increasingly of the opinion that in such conflicts, state-sanctioned rights and certificates of land
ownership are a much stronger tool than customary claims.

5.3.4 Customary norms ignore punitive and deterrent justice objectives

Another weakness of hybrid justice systems is that the norms and decisions of customary
institutions often ignore punitive and deterrent justice-seeking objectives in favor of restoring
relationships among kin and clan. While this characteristic can equally be seen as a strength, the
consequences are clearly demonstrated in a case of rape from Maluku (see Case Study 5). In this
case, the traditional leaders ignored the rape of a 17-year-old and focused their efforts on restoring
relations between the families. The harmony imperative trumped individual rights (see also Case
Study 2).

Case Study 5: Rape overlooked in Sepa Village

In 2003, 17-year-old P was raped by her brother-in-law in the village of Sepa, Seram Island,
Maluku. When she informed her husband, he became angry and beat her. Later, when she told her
parents what had happened, relations became heated between the two families. Insults and
threats were exchanged. The case was eventually reported by P’s husband’s family to the village
head. He in turn referred it to the village adat leader, as the families were from the same clan.

A community deliberation (musyawarah) was called by the adat leader. It was attended by the
families, adat functionaries from each village and neighborhood heads. They heard the details of
the case, but ignored the rape, focusing instead on the threats passed between the two families.
In fact, the rapist was not even called to attend. Ultimately, the musyawarah ended with both 83
families being fined for the threats. The rape was overlooked. When asked her views on the case,
P angrily responded, “Satisfied? No, I was not satisfied.”

Strengthening the oversight role of the courts so as to ensure that punitive and deterrent justice-
seeking objectives are not overlooked in a hybrid justice system requires additional efforts to
improve their accessibility as well as efforts to change social and moral norms through activities that
raise awareness of rights and formal legal processes. But it is neither feasible nor in the public
interest for all legal grievances to be handled through the formal legal system. We have seen earlier
that in developed nations as well, only a small minority of grievances or justiciable incidents are
settled through court adjudication. Also, as discussed above, one of the major functions of the
formal justice system is to establish a benchmark of rule-based legal certainty against which
informal dispute resolution can occur — the “shadow of the law”. However, even if state institutions
 are accessible, it is not always apparent that they will assist, as demonstrated below in the case
study on domestic violence from Central Kalimantan (Case Study 6).

5.3.5 State institutions abuse discretion and overlook cases

In hybrid justice systems, as noted above, state institutions often work together with customary
institutions to achieve a balance of different justice-seeking objectives. However, this does not always
occur. As noted above, the courts are legally required to take informal processes and local values and
customs into account. Clearly, “taking into account” does not mean “legally binding”. This flexibility can
be a good thing, as it allows for state institutions to cooperate with local actors and institutions and take
into consideration restorative justice objectives. But state institutions can also abuse this discretion.
Again, this often occurs when women’s rights are at stake, indicating that state institutions are no
panacea when it comes to counteracting the norms enforced by customary institutions.

Case Study 6: “It’s just excessive libido”

Sri lived in a simple house with her husband on one of the main roads in the urban sub-district of
Pahandut, near the center of Palangkaraya, Central Kalimantan. According to Sri’s sister Eka,
when engaging in sexual intercourse, Sri’s husband would be extremely violent, hitting and biting
her. Unable to tolerate it any longer, Sri left her husband and told her father what was happening.
They reported to problem to the police. After two weeks of inaction, the police suggested that the
problem be resolved through the damang, the traditional customary leader.

Under local adat law, if a wife leaves her husband, the assumption is that she is seeking a divorce.
Therefore, when the families met before the damang, Sri’s husband requested a divorce. Custom
also dictates that on divorce, property and goods must be transferred to the wife, in accordance
with a written pre-nuptial agreement. Sri did not want a divorce, just for the violence to stop.
However, a divorce agreement was written up; the husband signed and she felt compelled to sign
as well. This was partly driven by threats from the husband’s lawyer that she would be fined 100
million Rupiah (approximately US$11,000) for absconding. Sri, ignorant of the law and unable to
afford legal counsel, knew no better. “It’s hard when people are strong, smart and rich,” observed
her sister, Eka.

The damang did not deal with the domestic violence aspect, feeling this was being handled by the
police. The police, however, had already referred the problem to the damang. It therefore fell
through the cracks. When asked about the case, the damang’s Secretary simply laughed and
said, “It’s just excessive libido.”

84 This section has identified a number of strengths and weaknesses of the hybrid justice system as
practiced in Indonesia. Strengths include cost-effectiveness, accessibility and flexibility to overcome
power imbalances. It can achieve a mix of punitive, deterrent and restorative justice-seeking
objectives. However, it also has weaknesses, some of which are closely related to its strengths. The
system operates in a context of local power imbalances, often overlooking the interests of
disempowered community groups such as women and ethnic minorities. It is often unable to deal
with inter-village disputes and issues involving powerful external interests due to a limited sphere of
influence, and it prioritizes restorative justice-seeking objectives (over punitive and deterrent
objectives). In addition, formal justice institutions often fail to correct these biases.

In conclusion, the findings identify some of the specific channels of interaction between the
constituent components of Indonesia’s hybrid justice system. This suggests that improving the
functioning of Indonesia’s hybrid justice system requires action to strengthen both customary and
formal justice institutions and to better define the interaction between them. The next section turns
to identifying entry points and strategies to build on strengths and address weaknesses.
 Chapter 4
6. Program examples from Indonesia: Entry points, partnerships and time frames

This section covers the final three steps of the “grounded approach” and it summarizes the
approach employed by the World Bank in Indonesia to address some of the weaknesses identified in
the previous section. Three pilot projects are described: the Strengthening Non-State Justice
Systems Program (SNSJS), the Revitalization of Legal Aid (RLA) Program and the Women’s Legal
Empowerment (WLE) Program.61

The overall objective of the SNSJS pilot project is to develop more equitable and effective
community-based dispute resolution processes based on constitutional principles and safeguards.
Program activities include case documentation; capacity-building and skills development for local
dispute resolution actors on conflict management, human rights and gender; and support for local
and national regulatory frameworks that govern local dispute resolution institutions. It will also seek
to inform national policy on non-state justice through partnership with a national-level NGO and the
Supreme Court. The program will operate in two provinces – West Nusa Tenggara and West Sumatra
– from late 2010 until 2011.

The primary objective of the RLA pilot program is to improve the capacity of village-level community
legal aid posts to provide the following services: (i) legal aid, particularly with regard to land and labor
rights; (ii) mediation; and (iii) community legal education, particularly for women and youth. The
program has been implemented by local NGOs in three provinces — Lampung, West Nusa Tenggara
and West Java — since 2005.

The WLE program works with women’s groups at the village level and formal justice sector
institutions at the province and district level to: (i) increase legal and rights awareness of village
women; (ii) strengthen the capacity of formal justice sector institutions to understand and provide
community legal education on women’s rights; and (iii) increase legal aid services for women. The
program is integrated into the work of the local NGO Pemberdayaan Perempuan Kepala Keluarga
(PEKKA, or Female-Headed Household Empowerment Program) and is operating in eight
provinces.62

Each program seeks to build on certain strengths and address different weaknesses in Indonesia’s
hybrid justice system. Table 2 summarizes the entry points and change mechanisms that the
programs use, in line with the analytical framework described in Section 3.3 above.

85
 Table 2: Strengths, weaknesses, change mechanisms, entry points and programs
Strengths & Weaknesses Change mechanism Entry points
Strengths
Accessibility and Institutional effectiveness Case documentation skills
responsiveness (customary institutions)

Balancing power/ ensuring Institutional effectiveness Multi-stakeholder fora of formal state institutions (police,
execution through state- (state & customary judiciary and prosecutors) and customary law actors to
customary cooperation institutions) share skills and mutual understanding

Ensuring social harmony Institutional effectiveness Mediation skills for customary institutions
(customary institutions)

Recognizing and balancing Institutional design (state Case documentation of balancing justice objectives
justice-seeking objectives institutions) Judicial guidelines on recognition of customary justice

Providing pathways Institutional effectiveness Legal awareness campaign

to accountability Paralegals
Legal aid provision

Weaknesses
Women’s rights and Institutional effectiveness Training of state actors on gender
interests (state institutions) Case documentation
Institutional design
(customary institutions) Mediation training for women leaders
Human rights and gender training
Social values and beliefs Legal awareness training for women and legal information
campaigns
Economic empowerment Microcredit and training

Inter-communal conflict Institutional design Regional workshop groups and fora

(state and customary
institutions)

Powerful third parties Institutional effectiveness Legal aid and advocacy services
(state institutions)

Weak provision of punitive Institutional effectiveness Legal aid and advocacy services
and deterrent justice- (state institutions)
seeking objectives Social values and beliefs Legal information activities

State abuse of discretion Institutional design National and regional regulatory workshops and legal
(state institutions) drafting
Institutional effectiveness Case monitoring and documentation
(state institutions)
Social values and beliefs Legal information activities
86 Power relations Legal aid and advocacy services

The first point to make about the programs is that they work with both state and customary justice
institutions. This acknowledges the value of promoting engagement between formal and customary
justice as part of a hybrid system. The SNSJS program, for example, works directly with customary
institutions on codifying and reforming their local rules and procedures, but also with state
institutions on handling the decisions of customary processes that are “appealed” to the court.

The second point is that the programs operate at various levels of government, from the national
down to the village level. At the national and regional levels, program activities seek to address
inconsistencies in how the judiciary monitors the customary legal system, through institutional
design and effectiveness mechanisms. Specifically, the SNSJS program will support the
establishment and implementation of national guidelines for the judiciary to institutionalize a core
 Chapter 4
set of principles for the recognition of the decisions of local justice institutions that are consistent
with constitutional standards.

At the village-level, the programs use a range of entry points to facilitate change. The SNSJS
program aims to facilitate changes in institutional design for local customary legal systems through
a process of formalization of institutional structures and selected norms. This includes advocacy
efforts to expand the role of women in local justice institutions. The WLE program seeks to improve
the effectiveness of existing customary institutions and actors through skills training in mediation,
human rights and gender. Additional training is provided to local women leaders. In addition, the
SNSJS program will inform the development of social values and beliefs with an information
campaign on human rights and gender.

The third point is that the programs are designed to adapt to local conditions at the community level;
therefore, they neither attempt to address the same weaknesses nor utilize the same entry points in
all locations. For example, the SNJSS program operates in two provinces that have divergent
historical and contemporary policy contexts, and very different customary justice systems. West
Sumatra, as seen earlier, has well-established traditional customary tribunals, with a standard
structure and widely understood norms in the context of a dominant indigenous ethnic culture. In
West Nusa Tenggara, the situation is more fluid. Ethnically, the province is more heterogeneous and
a broad range of actors, encompassing village heads, traditional customary leaders and Islamic
leaders, are active in dispute resolution.

Hence, in West Sumatra, given the extent to which customary systems are already established, the
project focuses on grassroots empowerment for women and policy advocacy to include an
expanded role for women on local dispute resolution tribunals. In West Nusa Tenggara, where local
systems are less formalized, the project is more far reaching. It seeks to support existing efforts to
define local justice mechanisms, structures, processes and even norms in a number of villages.

A fourth major point on program strategy is that local partners are central, particularly at the sub-
national level. For the SNSJS program, working groups comprising relevant local government
agencies, formal justice sector institutions, academics, NGOs and local community leaders were
established to guide the initial research and subsequent project design and implementation. These
partners know what is realistic and achievable in their location and have the influence to bring about
change. They identified entry points and solutions that are realistic and appropriate. The central role
of partners in project design and implementation means that the programs are not aiming to design
an ideal justice system, but are rather capitalizing on the strengths and addressing weaknesses of
local state and customary legal institutions through a process of gradual and incremental change
based on local realities.

A final and related point is that in some locations, external intervention may be futile. In Central 87
Kalimantan, for example, the World Bank team was unable to identify suitable partners genuinely
interested in strengthening local justice institutions in a manner that would equip them to serve the
plurality of community groups seeking justice in a province recovering from bloody ethnic conflict.
Thus, the decision was made not to proceed in that location. Similarly, in Maluku Province, there was
little demonstrated commitment among key decision-makers in government and civil society to
strengthen local justice systems. The decision not to proceed in this location was based squarely on
the view that external actors can rarely, if ever, drive local institutional reform. Thus, without local
support, the program was not launched.

This section summarized how the World Bank in Indonesia, through a series of legal empowerment
programs, is seeking to support more effective and inclusive hybrid justice institutions. Driven by the
insights and practical experience of local partners, program designs focus on a range of strengths
and weaknesses via a number of entry points, including policy dialogues, training, documentation of
cases and the development of local regulations and national guidelines. Prospects for success are
 built primarily on the central involvement of key local state and customary institutions in program
design and implementation. This input — it is hoped — will ensure that program activities are
grounded in local realities and match local priorities.

7. Conclusion

This chapter has described a “grounded approach” to the design of programs to strengthen hybrid
justice systems that is attuned to local needs and opportunities. Five key steps were proposed: (i)
understand the historical and contemporary political and policy context of formal and customary
justice systems; (ii) analyze the strengths and weaknesses of formal and customary legal systems;
(iii) identify entry points for strengthening hybrid justice systems based on an analytical framework
of institutional change; (iv) realistically assess the opportunities for engagement on the entry points;
and (v) ensure a flexible and long-term commitment to implementation.

The chapter explicitly refrains from prescribing specific institutional arrangements or one-size-fits-
all “quick fixes”. Instead, it seeks to provide pragmatic guidance to practitioners and policy-makers
by suggesting a process of engagement. The underlying rationale for such an approach is the belief
that hybrid justice systems develop incrementally. Therefore, practitioners and international
development agencies should set themselves the task of supporting local actors to overcome
tangible injustices and weaknesses in existing arrangements in an incremental fashion and in
accordance with local timetables and opportunities, rather than attempt to prescribe “one-size-fits
all” policies and institutional designs.

Finally, the chapter illustrated how this approach could be pursued based on real examples from
Indonesia. The World Bank’s recent research on state and customary justice institutions and
subsequent operational programs may well be irrelevant to other contexts. However, we
nonetheless expect that the process of identifying these strategies may be applicable to other
country contexts as a means of supporting better justice systems in a context of legal pluralism.

88
 Chapter 4
footnotes introduction of ideal forms of justice is ‘Social Science and Diffusion of Law’ (2005)
1 Commonwealth of Australia, Strategic inspired by Sen, above n 4. 32(2) Journal of Law and Society, 203-40.
10 We recognize that it is methodologically 21 This needs to be balanced against the
Framework for Access to Justice (2009) 4.
2 Michelson cites research suggesting that unsound to apply the analytical approach tendency for each international agency to
about 15 percent of disputes in the United to the case from which it was inductively undertake its own assessment to the
States, England and Wales enter the legal developed. However, the purpose of this frustration of local agencies, particularly local
system: E Michelson, ‘Climbing the Dispute article is not to prove the approach by government officials.
applying it to the Indonesian case, but 22 The need for thinking laterally about the
Pagoda: Grievances and Appeals to the
Official Justice System in Rural China’ (2007) rather, illustrate the approach using the policy background and contemporary
72 American Sociological Review 461. In Indonesia case simply as a heuristic context will become apparent in the
Australia, only 6 percent of commercial device. See B. Geddes, Paradigms and discussions on entry points below.
Sand Castles: Theory Building and 23 Sen, above n 4.
disputes make it to court: Australian Law
Research Design in Comparative Politics 24 D.L. Van Cott, ‘Dispensing Justice at the
Reform Commission, Review of the
Adversarial System of Litigation (1998). See (2003), 94-5. Margins of Formality’ in Gretchen Helmke
11 See, for example, S. Blackburn, The Oxford and Steven Levitsky (eds), Informal
also H. Genn, Paths to Justice: What People Do
and Think About Going to Law (1999) (on Dictionary of Philosophy (2005), 195-6, which Institutions and Democracy: Lessons from
England and Wales); B. Curran, ‘Survey of the uses the terms “retributive”, “distributive” and Latin America (2006) 249, 251. See also, D.
Public’s Legal Needs’ (1978) 64 American Bar “commutative”, respectively. Bourchier, ‘Positivism and Romanticism in
12 P. Clark, ‘Hybridity, Holism, and Traditional Indonesian Legal Thought’ in T. Lindsey (ed),
Association Journal 848 and S. Silbey, P. Ewick
and E. Schuster, Differential Use of Courts by Justice: The Case of the Gacaca Courts in Post- Indonesia: Law and Society (2008), 94.
Genocide Rwanda’ (2007) 39 George 25 See, for instance, W.S. Saputro, Village
Minority and Non-minority Populations in New
Jersey (1993) (on the US). Washington International Law Review, 772, 765. Mediation Hall: Expansion of Community
3 13 See G. Williams, ‘The Aims of the Law of Access to Law and Justice [Balai Mediasi
Ibid. See also Asia Foundation, Citizens’
Perceptions of the Indonesian Justice Sector Torts’ (1951) Current Legal Problems, 137. Desa: Perluasan akses hukum dan keadilan
14 P. Da Cruz, Comparative Law in a Changing untuk rakyat] (2007).
(2001); World Bank, Forging the Middle
World (1999), 202. 26 For more on this topic, see World Bank,
Ground: Engaging Non-State Justice in
15 S. Engle Merry, ‘Legal Pluralism’ (1988) 22 Women’s Access to Justice: Case Studies of
Indonesia (2008); C. Odinkalu, ‘Poor Justice
or Justice for the Poor? A View from Africa’, Law and Society Review, 870. Village Women Seeking Justice in Cianjur,
16 RM Belle Antoine, Commonwealth Caribbean Brebes and Lombok (2008).
Paper presented at World Bank Legal
Law and Legal Systems (2008), 59. 27 G. Helmke and S. Levitsky, ‘Informal
Development Forum, Washington DC (2005);
Dale et al, Trust, Authority and Decision 17 Clark, above n 12, 767. Institutions and Comparative Politics: A
Making: Findings from the Extended Timor- 18 This seems like an attempt to seize the Research Agenda’ (2004) 2(4) Perspectives
Leste Survey of Living Standards (2010); and authority of the state to strengthen on Politics 725.
J. Faundez, ‘Should Justice Reform Projects legitimacy, but it could also be a strategy to 28 World Bank, above n 3.
Take Non-State Justice Systems Seriously? avoid state intrusion by taking a form that the 29 Ibid 54.
Perspectives from Latin America’ in The state recognizes, understands and will then 30 J. Elster, Explaining Social Behavior: More
World Bank Legal Review (2006). leave alone. J. Timmer, ‘Being Seen Like the Nuts and Bolts for the Social Sciences
4 A Sen The Idea of Justice (2009), 20. State: Emulations of Legal Culture in (2007), 368.
5 For a typology of recognition of non-state Customary Labor and Land Tenure 31 See Case Study 5 below: Rape Overlooked in
justice, see B. Connolly, ‘Non-State Justice Arrangements in East Kalimantan, Indonesia’ Sepa Village. The point of this discussion is
Systems and the State: Proposals for a (2010) 37 American Ethnologist 703. not to suggest that erosion of social norms is
Recognition Typology’ (2005) 38 19 On the Barangay Justice System, see M. either desirable or an aim of local justice
Connecticut Law Review 239. Stephens, ‘Local-level Dispute Resolution in reform programs, but rather, that there is a
6 Some examples include Australia, Ethiopia Post-reformasi Indonesia: Lessons from the need to be aware of and respect the strength
and Indonesia. Philippines’ (2003) 5(3) Australian Journal of local norms in designing such programs.
7 See generally T. Carothers, Promoting the of Asian Law, 213; S Golub, ‘Non-state 32 Helmke and Levitsky, above n 27, 732.
Rule of Law Abroad: In Search of Knowledge Justice Systems in Bangladesh and the 33 World Bank, above n 3.
(2006); S. Golub, Beyond Rule of Law Philippines’ (Paper prepared for DFID, 34 See generally T. Lindsey and M. Achmad
Orthodoxy: the Legal Empowerment January 2003); and G.S. Silliman, ‘A Political Santosa, ‘The Trajectory of Law Reform in 89
Alternative, Working Paper No. 14 (2003); Analysis of the Philippines’ Katarungang Indonesia: A Short Overview of Legal Systems
Commission on Legal Empowerment of the Pambarangay System of Informal Justice and Change in Indonesia’ in T. Lindsey (ed)
Poor, Making the Law Work for Everyone through Mediation’ (1985) 19(2) Law and Indonesia: Law and Society 2, 4-12.
(2008). Society Review, 279. 35 The Constitution asserts “The State
8 See Commonwealth of Australia, above n 1. 20 Legal transplantation has occurred recognizes and respects individual
9 The term “grounded” is borrowed from the throughout history and often with positive traditional customary law communities and
“grounded theory” approach to research. effects. For example, Roman law has had a their traditional rights as long as they survive,
Although this article does not specifically sustained and profound influence on civil and and in accordance with the development of
propose a grounded theory methodology, it common law traditions in Europe, see P. society and the principle of the Unitary State
borrows a similar aspiration of developing Wormald, Legal Culture in the Medieval West of the Republic of Indonesia, as regulated by
policy based on field research rather than the (1999). On legal transplantation and law.” (Article 18B(2)); and “Cultural identity
application of best practice institutional diffusion, see A. Watson, Legal Transplants and the rights of traditional communities are
templates. See generally, Barney Glaser and (1993); D. Nelken and J. Feest (eds), Adapting respected in accordance with the continuing
Anselm Strauss, Discovery of Grounded Legal Cultures (2001); M.D. Adler, ‘Can development of civilization over time.”
Theory: Strategies for Qualitative Research Constitutional Borrowing be Justified?’ (Article 28I(3)).
(1967). The focus on incremental steps to (1998) 1 University of Pennsylvania Journal of 36 Law No. 4/2004 on the Authority of Judges
reduce tangible injustices rather than the Constitutional Law 350; and W. Twining, (Indonesia), art 28(1).
 37 T. Lindsey, ‘Inheritance and Guardianship 46 On the conflict, see International Crisis Group, intentions. Although not always the case, it is
and Women: Islamic Laws in Aceh, a Year Communal Violence in Indonesia: Lessons presumed that the woman is obliging.
58 This has been well documented. For
After the Tsunami’ (2006), Paper from Kalimantan, Asia Report No.19 (2001).
commissioned by the International 47 Connolly, above n 5, 239. example, Odinkalu notes: “The assertion that
Development Law Organization (IDLO). 48 F. von Benda-Beckmann and K. von Benda- powerful men are liable to and do in fact get a
38 Law No. 5/1979 on Local Government Beckmann, ‘Recreating the Nagari: better deal out of the application of
(Indonesia). Decentralisation in West Sumatra’, Paper customary law is obvious.” See Odinkalu,
39 Law No. 32/2004 on Regional Government presented at the conference of the European above n 3. See also World Bank, Village
(Indonesia), which replaced Law No. Association for Southeast Asian Studies, Justice in Indonesia: Case Studies on Access
22/1999 on Regional Government London, 6-8 September 2001. to Justice, Village Democracy and
(Indonesia), removed this jurisdiction, but it 49 World Bank, above n 3. Governance (2004); S. Dinnen, Building
was later restored by Government Regulation 50 The Governance and Decentralization Bridges – Law and Justice Reform in Papua
No. 72/2005 on the Village (Indonesia). Adat Survey 2, 2006 <http://www.smeru.or.id/ New Guinea, State, Society & Governance in
councils are generally non-elected local report/research/gds2/gds2_eng.pdf> at 13 Melanesia Working Paper No. 01/3 (2001);
tribunals that represent the different clans January 2011. World Bank, above n 3; and T. Hohe and R.
within a traditional community. Adat leaders 51 Adat dispute resolution in Central Nixon ‘Reconciling Justice: Traditional Law
often serve concurrently as elected village Kalimantan is an exception. Filing fees in one and State Judiciary in East Timor’ (2003).
heads or appointed members of other village case studied were 600,000 Rupiah (around Certainly, much research indicates that the
councils. For more on Adat Councils, see US$65); in another, the Adat Council formal system is not very different. See, for
World Bank, above n 3, 20. charged 6 million Rupiah (US$650). instance, the seminal article by M. Galanter,
40 H.P. Glenn, Legal Traditions of the World 52 This case is drawn from field notes prepared ‘Why the “Haves” Come out Ahead:
(2001), 77. by Alpian, Pieter Evers and Cathy McWilliam Speculations on the Limits of Legal Change’
41 M. Shapiro, Courts: A Comparative and from a May 2007 field trip to Lampung (1974) 9 Law & Society Review 95.
59 Lawyers from LBH-APIK (Women’s Legal Aid
Political Analysis (1981), 20-2. Province to evaluate the Justice for the
42 Regional Regulation No. 13/1983 on the Poor’s Revitalization of Legal Aid program. NGO) in Lombok also stated that women are
Nagari as a Community Adat Legal Entity 53 In A. Baare, Policing and Local Level Conflict better served by formal justice. See World
(West Sumatra). Management in Resource Constrained Bank, above n 26.
43 Gubernatorial Decision No. 08/1994 on Adat 60 With respect to the expansion of palm oil in
Environments (2004) 9, unpublished memo,
Dispute Resolution Guidelines in the police claimed that they mediated as many as particular, see J. McCarthy, ‘Changing to
Jurisdiction of the Kerapatan Adat Nagari 80 percent of the legal complaints they Gray: Decentralization and the Emergence of
(West Sumatra). received. Volatile Socio-Legal Configurations in Central
44 Regional Regulation No. 9/2000 concerning 54 Asia Foundation, above n 3. Kalimantan, Indonesia’ (2004) 32(7) World
Provisions of Nagari Governance (West 55 See World Bank, above n 3, 55. Development, 1199.
56 61 For more information, see Justice for the Poor
Sumatra). On proactive versus reactive mobilization of
45 Regional Regulation No. 25/2000 on the the law, see D. J. Black, ‘The Mobilization of the Program in Operational Area, World Bank
Jurisdiction of the Government and the Law’ (1973) 2 Journal of Legal Studies, 125. <http://go.worldbank.org/SSJK3PXWZ0>, at
Provincial Government as an Autonomous 57 In Lombok, there is a tradition known as 10 January 2011.
62 Women Headed Household Empowerment,
Region (Central Kalimantan); District merariq or memulang, where the groom
Regulation No. 15/2001 on Adat Institutions symbolically kidnaps his fiancée and brings PEKKA <http://www.pekka.or.id> at 11
(East Kotawaringin). her to his family as a way of announcing his January 2011.

90
 Chapter 5
CHAPTER 5
Policy Proposals for Justice Reform in
Liberia: Opportunities Under the Current
5
Legal Framework to Expand Access
to Justice
Amanda C. Rawls*

1. Introduction

In November 2009, the United States Institute of Peace (USIP) published the results of an extensive
field research project, Looking for Justice: Liberian Experiences with and Perceptions of Local Justice
Options.1 This work was part of a USIP and George Washington University (GWU) project that aims
at assisting the Liberian Government and its international partners “to develop evidence-based
policy options for expanding the rule of law and consolidating peace over the next decade in Liberia
in ways that account for the rule of informal legal systems and grassroots understandings of
justice”.2

Over the period of ten months, the USIP study involved interviews with over 130 different individuals,
with over 35 focus groups in three of Liberia’s 15 counties. It was driven by questions of how average
Liberians view their justice options: Where do Liberians go to resolve their disputes? To what extent
is customary law practiced today, and how has it changed since before the civil war?3 To what extent
do the various dispute resolution fora produce satisfactory justice in the eyes of Liberians?4 The
study asked these and related questions as a means of constructing an evidence base from which
to examine key policy questions facing Liberia regarding the types of justice reform strategies that
might improve the Liberian experience of justice, ways that justice reform might bridge the gap
between the customary and formal systems, and the longer-term trade-offs relating to the role of
customary justice in the formal system.5

USIP simultaneously sponsored a Legal Working Group (LWG) of prominent Liberian legal scholars
to undertake a comprehensive analysis of the legal framework governing Liberia’s dual legal system,
and to explore the resulting possibilities for justice reform in Liberia. The LWG — representing
government institutions, the Liberia National Bar Association, the Louis Arthur Grimes School of
Law and civil society — met to discuss relevant constitutional questions including the separation of
powers, due process and equality. In collaboration with USIP, GWU, the Carter Center and the United 91
Nations Mission in Liberia (UNMIL), the LWG reviewed the above-referenced empirical research and
met with traditional leaders in different locations throughout Liberia to gather diverse perspectives
and discuss promising avenues for reform of the justice sector.

In December 2009, the LWG held a final meeting in Monrovia, and presented its findings to the
National Traditional Council, representatives of government ministries, civil society and international
partners. These findings encompassed the field research undertaken by USIP and GWU, as well as
the results of the assessment of Liberia’s dual legal framework undertaken by the LWG. The findings
were of three types: baseline findings on the dual justice system, recommended considerations and
principles to guide policy making, and key policy questions for justice system reform.

* Amanda C Rawls is an American attorney and international development professional, who worked as Legal Advisor
in the Ministry of Justice, Monrovia, Liberia until September 2010.
 The baseline findings confirm the existence of a dual legal system, with a basis in the Liberian
Constitution and statutory law. They identify internal inconsistencies, including statutes and regulations
that conflict with each other and with the Constitution, concluding that the entire justice system is in
need of clarification and revision. The findings on the formal justice system are largely unsurprising; the
system is widely believed to be corrupt and plagued by extensive delays, and is not the forum of choice
for most Liberians. The customary system is found to raise predictable concerns about gender equality,
protection of human rights, due process, and the separation of powers, particularly with respect to the
adjudication of more serious crimes. These concerns, however, are raised primarily by representatives of
Liberia’s formal legal system, and echoed by international non-governmental organization (NGO)
workers. They are raised rarely – if at all – by the Liberians consulted in USIP’s field research.

The most interesting empirical finding regards the preferences of many Liberians for the type of
justice meted out by the customary system: the USIP study found that, even if the formal system
were to operate fairly, free from corruption and in a timely manner, the average Liberian would still
prefer the customary system. The customary system is perceived as more holistic, taking account
of the underlying causes of a dispute and seeking to repair the tear in the social fabric, whereas the
formal system is seen as overly adversarial, retributive, and narrow in its focus on the specific case
at issue. A resulting concern raised in the study is that, in seeking to promote and extend the formal
justice system to all Liberians — motivated by a desire to expand access to justice and build trust in
the formal system — the Government risks sparking the opposite effect, causing Liberians to feel
that their access to acceptable justice is diminishing.6

From this empirical base, the LWG/USIP study offers guiding principles for policy-making on justice
reform, arguing essentially that reform efforts should focus broadly on how to provide greater access to
the kind of justice that Liberians want, rather than narrowly focusing on strengthening the formal
system or defining boundaries between the formal and customary systems. The study also
recommends that policy-making be driven by realistic assessments of the capacity of the formal legal
system — now and in the foreseeable future — and of the Liberian people’s justice preferences. The
study then recommends that policy-makers consider the implications of justice reform efforts on the
country’s other strategic priorities: fostering political development, promoting human rights and
maintaining peace.

At the conclusion of its findings, the LWG presented two key policy questions and proposed a menu
of options for policy-makers to consider in response to each. The policy questions were:

■ How can justice be improved at the local level?

■ As Liberia considers the future of its justice system and the dual system in particular, how can it
move toward a system that inclusively reflects the values of the Liberian people?7

92 Additionally, it offered process recommendations to guide the next steps of policy reform, at which
point the Liberian Government would take charge. The process recommendations included
continuing a robust social consultation process, culminating in a national conference that it was
hoped would determine the way forward for Liberian justice reform.

The findings were adopted at the December 2009 meeting in Monrovia. At the conclusion of this
meeting, the empirical research, recommendations and ownership of the proposed national
conference and social consultation process were handed over to the Ministry of Justice. This
chapter continues where the active phase of LWG involvement ended.

2. The Justice Ministry’s approach

The process recommendations of the LWG echoed recommendations for successful policy-making
in the concluding chapter of the USIP report, both of which were taken to heart by the Liberian
 Chapter 5
Ministry of Justice. The USIP report recommended a consultative process “explicitly engineered ‘to
identify and listen’ to local ideas and solutions rather than telling [local stakeholders] what those
are”.8 This was not just to boost local ownership of the reform process, but grew out of the
recognition that rural communities and traditional leaders have the potential to be sources of
innovation and drivers of social change.9

The Justice Minister launched the consultative process by convening a Steering Committee
consisting of the heads of the relevant government ministries and institutions — the Ministry of
Internal Affairs, the Ministry of Gender and Development, the Law Reform Commission, the
Supreme Court of Liberia and others — who nominated representatives to serve on an Organizing
Committee. This Organizing Committee in turn decided to convene four regional consultative
meetings of government stakeholders, traditional leaders and civil society to assist them in
determining the agenda for a national conference.

The above sequence of events is exceedingly common, not just in Liberia, but also in developing
countries across Africa, and most likely across the world. There is a constant tension around local
ownership, particularly when an international body believes that it has a good grasp of the problem
to be solved, the context in which the problem occurs, the information still to be gathered, and the
process that should be followed. It is common for institutions in Liberia to convene a taskforce that
creates subcommittees, nominates chairs, and develops workplans, which are validated in multi-
stakeholder conferences, only to stagnate because the Government lacks the human and financial
resources to devote to implementation.

This resource gap exists not simply because Liberia, as a developing, post-conflict country, has an
extremely limited national budget and a small, undereducated cadre of civil servants. It exists
because arguably, international partners, including the United Nations, are far more willing to fund
training, workshops, consultants and conferences than to fund implementation of long-term
activities designed without the assistance of an international consultant. It exists because breaking
down an implementation plan into a series of concrete activities to be undertaken — activities
sufficiently detailed that the relevant actors know what they are to do first, and have the skills to do
it — is arguably far more difficult than drafting a high-level strategy or a multi-year workplan.

2.1 The consultative process

At the outset, this process faced all of the challenges described above — the United Nations through
UNMIL was willing to fund consultative meetings, and the LWG Findings conveniently provided a
background document for “validation” at the regional level. This set-up facilitated a set of activities
that all of the actors were comfortably executing.

Four regional consultations were held — one in Monrovia involving primarily government
representatives from a wide range of ministries and agencies, and one in each of Bong, Bomi and 93
Grand Gedeh counties. Each of these latter consultations included proportionate representation
from the magistrate judges,10 traditional leaders, women’s group representatives, and civil society
organizations in a regional grouping of five counties so that, by the end of the process,
representatives from all 15 of Liberia’s counties had had the opportunity to react to the findings of
the LWG and to contribute their own thoughts, experiences and opinions.

2.1.1 The value of the consultative process

In addition to generating information on which to base the program for the National Conference, the
consultative process, albeit lengthy and resource-intensive, had two positive results. First, it
facilitated discussion and debate among actors in the statutory system, the customary system and
civil society. Rather than talking to interviewers, the participants were talking to each other. While
they may not have identified similar solutions to the weaknesses in the justice sector, they identified
a number of similar problems, and arguably being part of the same conversation is in itself a building
block to future collaboration.
 Second, the process of repeatedly bringing participants together created feedback loops in which
participants could see how their contributions were affecting outcomes. Some of the regional
consultation participants had been involved in the USIP and LWG research, and those who were
new to the topic had an opportunity to express their experiences, thoughts and frustrations with
the current state of justice in Liberia, prior to attending the National Conference. The Findings of
the LWG were disseminated to participants not as the conclusion of a process in which they
played little or no part, but as a phase in a much larger process that they now had the opportunity
to influence.

Similarly, participation in the Monrovia-based government consultation provided an opportunity for

high-level engagement by the government ministries and agencies who would later participate in the
National Conference, but who were not the co-hosting Ministries of Justice and Internal Affairs, nor
the Supreme Court. Because traditional leaders and civil society organizations were not present and
the media were invited only for the opening statements, government representatives could be open
in sharing their views and disagreeing with each other.

2.1.2 Common themes across consultations

There were a number of similarities among the four regional consultations, which greatly helped
to refine the scope of the national conversation and to identify likely areas for policy
recommendations. Participants in all of the consultations identified corruption in the formal legal
system as a primary obstacle to justice, focusing on the lack of transparency of the fees charged
to litigants, as much as on the ability of wealthier or more powerful parties to influence the judge.
Participants universally sought greater jurisdiction for the courts of first instance, whether the
magisterial courts of the formal system or the chiefs’ courts, and expressed the desire for a
formal role of traditional leaders in the formal system. Participants overwhelmingly
acknowledged without argument that objectively harmful forms of trial by ordeal were against
Liberian law and should be banned. They were far more divided on the question of non-harmful
ordeal methods of collecting evidence and proving guilt or innocence.

When the National Conference was convened in April, most of the traditional and civil society
participants from the counties outside of Montserrado and a number of the high-level government
attendees had previously participated in regional consultations. This iterative process meant that it
was possible, at the National Conference, for facilitators to present to participants the concerns that
they had already raised, and then to ask them to focus on concrete proposals for how they could be
better addressed. It is typically easier to cite problems than to envision solutions; since participants
were now coming together for the second or third time, it was essential to move away from the list
of grievances to concentrate on concrete recommendations.

2.2 Government priorities

94 The considerations of social scientists and rule of law practitioners studying the Liberian dual justice
system informed the questions posed to participants in the regional consultations, and thus
inevitably shaped the responses. However, these priorities potentially differ from those of the
Government, which is ultimately responsible for initiating legal reform and ensuring access to
justice. Academics and outside observers often have more freedom to consider ideal alternative
justice systems for Liberia, to recommend interim reforms that respond to the demands of the
public but compromise on international commitments, or to simply caution that justice reform
requires generations rather than years to have demonstrable success.11

The Government, on the other hand, needs reforms that are acceptable to both the local population
and the international donor community and achievable from their actual starting point, with some
level of immediate impact. Thus, ultimately, policy decisions may not reflect what individual
government actors believe would be the best outcome for Liberia on the narrow question at issue
(the jurisdiction of traditional chiefs’ courts, for example), but may instead reflect a complex
balancing process.
 Chapter 5
The Government of Liberia is balancing at least three factors in designing a policy to address the
plural legal system, each of which will be discussed in greater detail below:

■ A preference for building trust in the formal legal system and using law and policy to change
beliefs and behaviors. This is fueled partly by an awareness of the significance of international
opinion, manifested in the human rights discourse;12
■ An urgent need to establish and maintain a government monopoly on the use of force, which
would be evidenced by a decrease in mob violence and an effective response to violent crime.
This creates pressure for policy options that provide fast results; and
■ Acceptance of the need to balance the power of government branches, ministries, agencies and
individuals with a stake in the structure of the justice system. This realpolitik serves as an often
unspoken constraint on any policy options that might shift power from one part of the
government to another.

2.2.1 Preference for the formal legal system

Ownership is one of the bedrock principles of international development. This is apparent not only
in multilateral agreements like the Paris Declaration on Aid Effectiveness,13 but also in the rhetoric
that bilateral donors, NGOs and the United Nations use in public discussions of their programs.14
This is not just an ethical position taken by the donor community — it is a reflection of the belief that
locally designed and “owned” initiatives are more likely to respond to the needs and preferences of
the community and thus more likely to be effective in meeting their goals.

The field research findings discussed in the introduction are not unique to Liberia — a number of
developing and post-conflict states experience a similar preference of their population for
customary justice options over the formal system.15 Given this expressed preference, access to
justice and rule of law initiatives risk failing the ownership test when they appear to impose value
systems together with legal reforms.16 More than other sectors that receive substantial
international development assistance, such as public health, economic growth and infrastructure
development, the justice sector is closely tied to a society’s conscience. The operation of the
justice system and the alternatives that individuals seek reflect interpretations and beliefs about
power, politics, gender relations, family structures, religion, the role of the state and countless
other aspects of society.

At the same time, it would be incorrect to assume that the local preference is exclusively for
customary justice. In Liberia, there is a divide in the population between those who feel that the
formal system has been imposed from abroad (based on the United States justice system), and
those who identify strongly with this system. This divide closely mirrors the distinction between
those Liberians who trace their ancestry to the freed slaves who founded the Republic of Liberia
after returning from the United States and brought the formal legal system with them, and those
who descended from Liberia’s indigenous inhabitants. But the divide is intensified by the fact that 95
most of the nation’s elite legal practitioners, including government leaders as well as those who were
not descended from the returned freed slaves, were educated in the United States and thus steeped
in its legal culture. Hence, there is a situation in which those Liberians who shape legal policy have a
profound sense of ownership over the formal legal system.

This ownership translates into a strong sense of respect for the constraints created by the Liberian
Constitution and the opinions of the Liberian Supreme Court regarding the role of traditional leaders
and the customary law in the justice system. It also translates into a genuine interest in rationalizing
the inconsistencies found in the Liberian legal framework, rather than creating a new framework to
respond to an immediate need. Law is perceived by those in power not only to structure social
interactions, but also to have the potential to shape beliefs and behavior. It is a perceived inevitability
that formal law will triumph over customary justice, particularly the ‘supernatural’ elements of the
latter; crimes of witchcraft and evidence collection by ‘supernatural coercion’ are expected to cease
as a more objective and rigorous formal system spreads.17
 A second pressure encouraging governing powers to emphasize the formal system emanates from
the significant influence that the priorities and finances of international and multilateral
organizations hold over Liberian policy-making. The United Nations, the United States of America
and the large variety of NGOs that are currently investing in rule of law programming routinely
express concern over the protection of human rights and the strengthening of the State security and
law enforcement apparatus — the national police, prosecution and the prison system. In 2010,
externally funded and coordinated projects were responsible for: a prosecution unit and court
devoted to sexual and gender-based violent crimes; a training program to train new magistrate
judges for national deployment; a national public defender program to establish a probation system
and to supplement salaries of prosecutors; and countless other interventions designed to
strengthen the formal legal system. This focus reflects a donor response to strategic priorities
articulated by the Liberian Government, as well as the justice paradigm most familiar to
international supporters.

Outside researchers caution that this elevation of the formal system is based on an idealized version
of what that system could be, not a realistic perception of what it is.18 Irrespective of the truth of this
observation, the belief in the ultimate primacy of the formal system — even if an ideal to be attained
in the future — creates a firm constraint on the justice options that the Government will
wholeheartedly pursue.

2.2.2 Urgent need for change without inciting violence

Although Liberia is at peace, there is a palpable feeling of unrest in the justice sector. USIP reports
that the perception of many Liberians is that crimes associated with “witchcraft” are on the rise, a
contention supported by frequent stories of trial by ordeal, and “traditional detectives” or
“herbalists” gathering evidence in cases of ritualistic killing.19 In Monrovia as well as elsewhere in the
country, incidents of mob violence ending in death are common.20

While it may be true that justice reform is a project of decades, not years,21 that more empirical
research is needed to refine approaches, and that we cannot rush the process without jeopardizing
the quality of the result, it is equally true that some visible changes must be made immediately if the
Government is to increase its control, as well as public acceptance of its control, over this situation.
The Ministry is further pressed to demonstrate this control while at the same time not denigrating
traditional culture.

The Justice Minister therefore seeks to strike a balance between acknowledging both the justice
preferences of the Liberian people, and the weaknesses of the formal system in practice, while
stressing the boundaries on potential reform. At the opening ceremony of the National Conference
on Enhancing Access to Justice, the Minister set out this pragmatic approach, stating that:

96 laws are rooted in the values and beliefs of a people and therefore the enactment of
any legislation must take into account socio-cultural realities; we cannot continue to
ignore the desire of our people to have customs and traditions recognized by the
formal justice system, but we must do so being mindful that it is imperative to apply
rules and principles that are fair and just, and show respect for human dignity.22

2.2.3 Balancing power within the Government

Power and control inevitably play a part in any official Liberian Government position on justice
reform. The hierarchy of traditional chiefs falls under the Ministry of Internal Affairs, while the
training and supervision of prosecutors and police officers falls under the Ministry of Justice.
Traditional chiefs, as part of the Ministry of Internal Affairs, fall under the executive branch of the
Government, while the magistrate judges fall under the Judiciary. These divisions, though
mundane, are significant when discussion of justice reform turns to two often proposed options.
These options include: the abolition of the Hinterland Regulations23, which grant original
jurisdiction to traditional chiefs over petty criminal matters in the absence of a magistrate judge
 Chapter 5
(strongly resisted by the Ministry of Internal Affairs, which would lose one basis of its claim to
legitimacy in its exercise of judicial powers, and rejected by the Judiciary, which sees no room for
flexibility in the separation of powers); or permitting traditional chiefs to detain suspects
(challenged by the Ministry of Justice, which wishes to maintain a firm monopoly on exercise of
police powers).

The Law Reform Commission, established in June 2009 by Executive Order,24 provides one way to
avoid the worst of these power struggles. The Commission mandate includes the directive to
“[s]upervise the law reform process of the country and serve as the coordinating arm of the
Government for various law reforms desired or being undertaking by various ministries, agencies,
political sub-divisions, authorities, public corporations and other institutions of the Government.”25
Its independence from the Justice Ministry gives it some freedom to make decisions that take into
account a balance of power with the Ministry of Internal Affairs and the Judiciary, although the
Chair of the Law Reform Commission of Liberia (LRC), Philip Banks, is a former Justice Minister.
Much of the success of justice reform in Liberia may depend on the ability of the Law Reform
Commission to play this mediator role wisely. As of mid-September 2010, the future of the Law
Reform Commission was uncertain to some extent; the Liberian Legislature had not yet passed the
Act that would have created the LRC as an institution under law, citing the high cost of operations,
and the Executive Order provisionally authorizing the LRC technically expired on 10 June 2010. If
the Legislature adjourns before the Act is passed (it was scheduled to adjourn for a six-month
recess at the end of August), it is likely that the LRC will be reauthorized by a renewal of the
Executive Order during the legislative recess. But without legislative approval, however, its funding
and therefore its operations are in danger of being sharply curtailed.26

2.3 Public opinion: The National Conference on Enhancing Access to Justice

The three-day National Conference on “Enhancing Access to Justice: A review of Our Customary
and Statutory Systems” was co-hosted by the Ministry of Justice, Ministry of Internal Affairs, and
the Supreme Court in Gbarnga, Bong County, 15-17 April 2010. The Conference brought together
over 100 traditional leaders, civil society representatives, and government officials from all 15
counties of Liberia, with the aim of drafting a set of recommendations to present to Liberia’s LRC
and other stakeholders. The recommendations will cover how both the formal and customary
systems and their interaction could be strengthened. President Ellen Johnson Sirleaf presided over
the opening of the Conference, indicating to the participants that there are some elements of the
traditional system that must be preserved, respected and used respectfully, decrying corruption in
the formal system, citing Liberia’s international legal obligations, and asking participants to seek
an answer to the question of whether the Rule of Law can be made applicable to traditional
systems?27

The extended consultative process discussed above led to possibly the greatest success of the
National Conference: several of the traditional leaders participating commented that, for the first 97
time, they felt like they were being listened to. The importance of this result for peacebuilding in
Liberia cannot be overstated. This outcome was a result not of the organization of the Conference
itself, but of the process beginning with the USIP research and the LWG activities as early as 2007,
and the iterative approach of the regional consultations, which demonstrated to the traditional
leaders how their opinions, rationale and positions were being heard in one forum and taken into
account as the next step of the process was implemented.

The other overwhelming success of the Conference was that participants did not simply present a
list of grievances, but engaged in brainstorming possible concrete policy solutions.

This was possible both because they felt that their complaints had been heard (and that the
Conference agenda was designed around these complaints), and because the Plenary was divided
into smaller subgroups for one full day of the program, each with a different, narrowly tailored
question to discuss. Facilitators, armed with documentation of the complaints previously raised,
 worked diligently to keep the participants in each group focused on solutions rather than problems.
The groups concentrated on the following questions:

1. How can both the customary and statutory justice systems better reflect Liberian values of
justice? This included discussion of both how the formal system could incorporate more
elements of restorative justice, and how the customary system could better protect constitutional
rights.
2. How can we change the way the two justice systems interact to better address issues of
customary beliefs and practices that the formal system finds problematic? This included
substantial discussion of how trial by ordeal should be addressed.
3. How could the Government reform both the formal and the customary justice system to increase
access to justice? This included discussion on who the Government should work with to enhance
access to justice nationwide, how the formal justice system could be made more accessible in
rural areas, and how the judiciary law could be changed to increase access to justice.
4. How can the statutory legal system be made fairer? This included significant discussion on how
the Government can best combat corruption.

The impact of dividing the participants into four subgroups and focusing the discussion was seen on
the final day of the conference, when participants in the Plenary session were invited to comment on
the work of all four groups. The plenary discussion turned almost exclusively to the most
controversial, sensational topics — trial by ordeal and women’s rights. These topics, which spark
considerable passion from Liberians on all sides of the discussion, do not lend themselves to
constructive discourse. By dividing the participants on day two and assigning each group a distinct
topic to focus on, facilitators were able to direct conversation back to the specific questions
assigned to their group, assuring participants that these other issues were being dealt with in other
groups. At the same time, the group discussing trial by ordeal was able to move past emotional
reactions and to identify potential common ground for compromise.

2.3.1 Immediate outcomes of the conference

At the end of the three days, participants had produced a number of unsurprising outcomes: a set
of guiding principles that emphasize mutual respect, input-heavy recommendations to invest in
strengthening infrastructure and human capacity of both systems, requests for higher salaries for
all justice actors to combat corruption, and recommendations that the formal system lower its fees.

At the same time, participants produced insightful recommendations for law reform, administrative
reform and further research. Their recommendations also included ideas for new initiatives within
the current legal framework that are simple and straightforward, and yet have tremendous potential
to respond to both the justice needs of the Liberian people, and the competing priorities of the
government officials — particularly the Justice Minister — who would need to support
98 implementation.

The long list of conference recommendations were approved by consent; representatives of the
government hosts, international supporters and civil society participants offered congratulatory
farewell remarks; and participants departed for their home counties, leaving the conference
organizers with the significant question: now what?

It is easy to underestimate the difficulty of converting a strategic goal, public consensus, or high-
level vision into an implementable action plan. Many of the conference recommendations were
neither possible within the framework of current Liberian law, nor feasible within current resource
constraints. Others were premised on political decisions that Liberia has not yet made, regarding
whether the country will formalize a role for customary justice within the legal system. As is the case
after any such broad consultative process, there was a significant danger that a conference report
would simply be drafted and shelved, or that the Government would feel pressured to make hasty
decisions with significant long-term repercussions.
 Chapter 5
2.3.2 The post-conference process
Following the National Conference, the Justice Minister convened a Post-Conference Review
Committee, to be led by the Chair of the Law Reform Commission, former Justice Minister Philip
Banks. The Committee’s mandate was to review the conference recommendations, categorize them
according to the type of change that each would require, analyze their feasibility under current
Liberian law and within current resource constraints, and draft a timeline for implementation.

As the Post-Conference Review Committee began their work, a number of concerns arose.
Membership in the Committee grew with the addition of Liberian legal professionals who had not
previously participated in either the consultative process or the Conference. On the one hand, these
attorneys provided needed expertise in the formal legal system and its constraints; on the other,
although the committee included representation from the Ministry of Internal Affairs through the
National Traditional Council, the addition of each new attorney shifted the balance of voices toward
the formal system. Each new participant brought his or her own ideas on how Liberia’s different
justice systems should interact, and added them to the list of recommendations under discussion.

Despite these challenges, the Committee finalized a conference report and prepared a
comprehensive analysis of the Conference recommendations. As the Committee’s work
progressed, initial impassioned calls for broad legal reform or wholesale rejection of aspects of the
customary legal system were tempered, perhaps by an increased understanding of the logistical
complexities and political challenges inherent in fundamental overhaul of a nation’s legal system.
When the Committee presented its analysis to the Justice Minister in early August 2010, the list of
administrative reforms, public education needs, and areas for additional research far outweighed
recommendations for legal reform.

2.3.3 Moving toward implementation

The list of recommended actions prepared by the Post-Conference Review Committee covers over
60 initiatives, falling under the responsibility of some 12 different ministerial and non-governmental
agencies and actors. The thorniest political questions — such as determining whether customary
courts should be created by law as a part of the formal system — are expected to be preceded by
considerable additional field research. Fundamental legal reform is expected to be undertaken by
the LRC, in collaboration with the relevant government ministries, under its mandate of identifying
obsolete, inconsistent and contradictory laws, as well as rationalizing the relationship between
statutory and customary law (once the policy decisions have been made). This process should be
expected to take a very long time.

As the law reform process moves gradually forward, policy change within the existing legal structure
can help to bridge the gap between the justice that Liberian people seek and the justice options that
the system currently provides. But with so many different proposed initiatives on the table, it is a
significant challenge for the Government and its international partners to determine which actions 99
to take first. Three of the most promising avenues for policy change, drawn from the
recommendations of the participants at the National Conference on Enhancing Access to Justice,
are discussed below.

3. Policy proposals

“A justice system is only as good as its capacity to respond to the demands made on it”.28

The following initiatives have been selected for discussion because they require no legislative action
for implementation and they highlight the fundamental unresolved issues raised by Magistrate
Judges, traditional leaders, civil society representatives and women’s groups in the course of the
National Conference. Each initiative has the potential to notably increase access to justice and its
perception across the country, because it creates the possibility of honoring both the Liberian
 preference for the customary justice system, and the chiefs’ concerns over losing power, while not
violating the statutory laws that constrain justice options. These initiatives are the following:

1. Carving out a formal role in the formal justice system to task traditional chiefs with facilitating
customary resolutions of criminal matters to be submitted to prosecution as recommendations
for case disposition.
2. Drafting policy on alternative forms of oath-taking in criminal prosecutions that permit adherence
to traditional belief systems while not violating constitutional protections for criminal suspects.
3. Writing down customary law, both as idealized and as applied in practice, in each of Liberia’s
ethnic groups, so that it can be evaluated for application in relevant cases in the formal courts.

3.1 Customary dispositions of criminal cases

Under the proposed initiative traditional chiefs will be able to continue to hear minor criminal
matters in the form of pre-trial conferences, the results of which can be offered to the prosecution
as viable case dispositions. The following discussion examines if such an initiative: is responsive to
the justice desires of the Liberian people; follows from the solutions proposed at the National
Conference; can be defined within the bounds of current Liberian law (and therefore can be
implemented without legal reform); falls within government priorities; and is logistically feasible.

There was broad consensus at the Conference that traditional leaders should have concurrent
jurisdiction over minor criminal matters and civil complaints. The definition of “minor” was never
specified; it is widely accepted that chiefs do not have jurisdiction over crimes in which blood is
spilled, armed robbery, or rape cases in which physical violence is used, the victim is a child, or the
perpetrator is a stranger. However, theft, destruction of property, criminal negligence, “less severe
rape”, and other non-violent crimes are generally considered within the competence of traditional
chiefs, who would essentially conduct alternative dispute resolution as though they were handling
civil matters. In their reasoning, conference participants echoed the findings of the USIP and LWG
studies, saying that the customary justice system is faster and cheaper, and provides a resolution –
generally with guilt admitted and restitution paid – that leaves both parties satisfied.29

When discussants were asked to consider ways of inserting these restorative elements into the
formal system, they protested that this solution would be unsatisfactory because the formal
adjudicator would be unable to craft a compromise or mediated solution that would satisfy both
sides without knowledge of the parties, their relationships and an understanding of the social
context in which the litigants operate.

Although granting customary courts the power to hear these matters would solve this issue, respond
to an expressed preference for justice, and contribute to reducing the backlog in the court system,
there is a significant legal obstacle to taking this path — the doctrine of the separation of powers.
100
3.1.1 The separation of powers30
While the regional consultations were taking place, the Ministry of Justice commissioned research
on the formal legal constraints on customary justice. Based on a review of the Liberian Constitution,
Supreme Court opinions, the Hinterland Regulations and other relevant legislation, the Ministry
prepared an outline of the current constraints, identifying potential focus areas for statutory law
reform and constitutional reform, as well as a Supreme Court precedent that would have to be
overturned to render lawful the jurisdiction of customary courts over criminal matters.

The commissioned study found that the relationship between the customary and statutory systems
is defined by the constitutional edicts concerning separation of powers, the statutory role of
traditional chiefs in implementing the Hinterland Regulations, and Supreme Court decisions
defining the limits on customary dispute resolution.31 These three frameworks are not internally
consistent, resulting in a status quo in which nearly any act of the customary courts that is
acceptable within one framework is in violation of another.
 Chapter 5
Article 3 of the Constitution mandates the separation of powers. It grants the power to take judicial
action exclusively to the judiciary, and states that “no person holding office in one of these branches
shall hold office in or exercise any of the powers assigned to either of the other two branches except
as otherwise provided in this Constitution”.32

While the Constitution seems unambiguously clear on this issue, Liberian statutory law is not. The
Executive Law grants power to the Ministry of Internal Affairs to manage a system of traditional
courts, stating that the Minister of Internal Affairs is to “manage tribal affairs and all matters arising
out of tribal relationships, draft rules, regulations and procedures for tribal government and courts
including fees allowable in such courts, and, administer the system of tribal courts”.33 This modern
delegation of authority has its origins in the Act Creating the Interior Department (now the Ministry
of Internal Affairs) in 1869, 35 years before the native Liberians were granted citizenship.

The 1869 Act apparently granted the executive power to hold judicial hearings and make judicial
decisions involving native Liberians — a power that was confirmed by the legislature in 1905,
following the extension of Liberian citizenship to native Liberians and the expansion of government
control beyond the original boundaries of 40 miles from Monrovia, with passage of an “Act Providing
for the Government of Districts within the Republic, Inhabited by Aborigines“. This Act apparently
established a native court system from which decisions were appealable to a statutory Quarterly
Court, an organ of the Judiciary.34

The Supreme Court upheld this judicial power of the Executive in 1907, with the caveat that the
Executive could not infringe on the Constitution in exercising this power.35 Counselor Jallah Barbu,
a commissioner for the Law Reform Commission, notes that this decision is inherently
contradictory, essentially granting the Executive an exception from the separation of powers clause
of the Constitution only when the subject matter is purely “native” Liberian.36

The Liberian Supreme Court has maintained this contradiction in its decisions on the jurisdiction of
customary courts. In cases arising from the practice of trial by ordeal in the customary courts, the
Supreme Court issued rulings curtailing their use of specific practices, without questioning their
jurisdiction over the subject matter of the case, thus effectively acknowledging the existence, legitimacy
and jurisdiction of customary courts.37 However, at the same time, the Court has repeatedly held that
customary courts have no legal grounds to hear cases over which the Judiciary has jurisdiction. Since
under the Constitution the judiciary has jurisdiction over all legal disputes, the customary courts are left
with jurisdiction only over matters that have no cause of action – for example, insult or violation of a local
regulation such as a non-member of a secret society viewing society activities.38

Over the years, in a few individual cases, the judiciary has attempted to carve out specific jurisdiction
for chiefs, for example, by conceding that they could act in both a judiciary and an executive capacity,
provided they did not act in both capacities at the same time.39 However, for the most part, Supreme 101
Court decisions have chipped away at the power of the customary courts. They have found that the
executive branch (which includes all customary court judges) is not entitled to have the power to
impose an enforceable punishment, such as a prison term or a fine.40 They have found that jurisdiction
of customary courts cannot be created by the consent of the parties.41 Further, they have held that,
despite clear local government law to the contrary, proceedings held before a customary court and
reviewed by the county superintendent are void (rather than appealable to the judiciary).42 In this last
case, however, the Court offered a potential resolution when it determined that customary courts were
to be understood as administrative tribunals, provided for under Article 65 of the Constitution.

Article 65 states that:

The Judicial Power of the Republic shall be vested in a Supreme Court and such
subordinate courts as the legislature may from time to time establish. The courts
shall apply both statutory and customary laws in accordance with the standards
 enacted by the Legislature. Judgments of the Supreme Court shall be final and
binding and shall not be subject to appeal or review by any other branch of
government. Nothing in this Article shall prohibit administrative consideration of the
justiciable matter prior to review by a court of competent jurisdiction.43

By providing for the application of both customary law and the statutory system, and by allowing
administrative consideration prior to court adjudication, Article 65 creates two distinct, parallel
means of integrating statutory and customary justice independent of the statutory role of
customary courts. However, it raises two questions: what are the bounds on “administrative
consideration” and what is customary law?

The second of these questions is addressed below, in section 2.3 on documenting customary law.
The first question impacts directly on the judicial role that could be carved out for traditional chiefs
under the current statutory legal framework. The Supreme Court addressed the scope for action of
traditional chiefs under Article 65, holding that hearings conducted before Executive Branch officials
are subject to judicial review, and should be treated as hearings before administrative tribunals.44
This was later supported in the Court’s decision that clan and paramount chief courts can undertake
administrative considerations of the facts of a case without violating Article 3, provided that parties
retain access to the formal courts.45

3.1.2 Customary dispute resolution as an administrative consideration in criminal matters

Liberia is in the process of finalizing a policy on plea negotiations for implementation in Circuit
Courts.46 While recognizing that plea negotiations are susceptible to corruption and misuse, the
Justice Ministry is seeking to implement the plea negotiation legislation that has been on the books
since at least 1973,47 and to train the county attorneys (prosecutors operating in the Circuit Courts,
which hear more serious criminal matters) to begin developing plea agreements. It is hoped that
these agreements will combat the problem of prolonged pre-trial detention by enabling courts to
process a larger volume of cases more quickly. It is also hoped that it will serve to reduce the overall
prison population, by reducing the amount of time the average arrestee spends incarcerated — both
pre- and post-conviction.

Plea negotiations will not be used, at least initially, in the courts of first instance, the magisterial
courts, which handle a far larger volume of cases. This creates an opportunity for traditional chiefs
to conduct administrative review to help clear the case backlog, while potentially providing a more
satisfying justice option to litigants. This suggestion came from participants at the National
Conference, both as a recommendation that litigants in criminal cases attend pre-trial conferences
(also expressed as a recommendation for mediation and arbitration as alternatives to court), and as
a recommendation that all disputes be taken to the chiefs first.

102 Permitting administrative review of criminal matters by traditional chiefs and using its outcome to
structure plea agreements differs from ongoing projects to expand Alternative Dispute Resolution
(ADR), because it considers customary resolution of disputes as a stage of the formal legal process,
rather than an alternative to it. Because customary adjudication generally involves both a guilty plea
and an agreement on restitution in addition to reconciliation of the parties,48 it would function
similarly to a plea negotiation, although without the requirements on evidence and standards of
proof that a formal plea negotiation would entail. This process has been described by Counselor
Felicia Coleman, now Chief Prosecutor for the Sexual and Gender-based Crimes Unit of the Ministry
of Justice, as follows:

Social and family pressures of any and every kind are brought to bear on the disputing
parties to shift ground, to accept, to compromise, and to settle the dispute. The
common element of these various models of traditional dispute settlement in Liberia
is the emphasis on peaceful settlement, compromise, and agreement where
communal interests outweigh individual rights and interest…. The community acts as
 Chapter 5
a monitoring and arbitrating presence providing an arena for private feeling to be
vented in a public manner and acting as a safety measure and a sanctioning device to
the confronting parties.49

Because a customary pre-trial conference would be considered administrative review under Article
65, the courts could accept or reject any resulting agreement — for instance, rejecting the
agreement if there is a concern that confession was coerced or that power imbalances unfairly
influenced the agreement. This would necessitate written documentation of the administrative
finding, which could be provided to the prosecution as a recommendation that prosecution be
waived provided that the alleged perpetrator complies with the customary resolution.

An addendum to this initiative would be the use of the same traditional chiefs to post bail for
suspects who agree to customary dispositions of their cases, pending judicial review. This approach
was recently piloted by the Ministry of Justice and the Liberian Judiciary, following unrest in Lofa
County. Nine suspects accused of inciting violence were released on the word of traditional
leadership in Lofa, who agreed to ensure that the suspects returned for their court appearances.50
This agreement was reached in order to prevent the detention of the suspects from serving as a
flash point for further unrest, and if successful, it will serve as a model for future agreements using
traditional leadership in the formal legal structure.

3.1.3 Challenges to overcome

Three significant concerns arise:

■ the danger of coercion when confessions are obtained by a traditional chief, even acting as an
administrative tribunal;
■ the logistical challenges of conducting pre-trial conferences with participation of victims, wit-
nesses and other community members for detainees in Liberia’s prisons and jails; and
■ the compensation of the traditional chiefs, for their contribution to the criminal justice system.

In the first point, it will pose a challenge to the formal system — and specifically to the Ministry of
Justice — to promote a system in which fundamental rights including protection from self-
incrimination and coercion are violated. The customary system often uses “supernatural”
methods of evidence collection to obtain confessions, which would not be permissible in the
formal system. This problem could possibly be dealt with through an expansion of the definition of
permissible oath-taking in Liberian law, which will be discussed below. Another approach would be
to work with the traditional chiefs to draw up guidelines for administrative consideration,
explaining that the formal courts will be obligated to reject negotiated pleas in cases where these
guidelines are violated.

In the second point, transportation logistics are one of the most difficult hurdles to overcome in the 103
disposing of criminal cases. In response to this challenge, a Sitting Program was established inside
the Monrovia Central Prison to bring Magistrate Judges in once a week to dispose of detainee cases
and avoid the difficulties of transporting the detainees to the court. A similar program for traditional
chiefs would not be practical, as customary dispute resolution requires the presence of the accuser
and possibly other members of the community. This suggests that the appropriate time for pre-trial
conference would be after arrest but prior to commitment of the suspect to a prison facility, when a
magistrate judge can grant release under supervision of the traditional authority. Prosecution can
then request a hearing following the negotiated settlement by the traditional chief.

On the third point, the issue of payment, traditional chiefs are currently paid by the Ministry of
Internal Affairs; a fund and budget line would need to be established either through this Ministry or
by the Ministry of Justice in order to provide a stipend for mediation or pre-trial conferences. It is
essential that parties themselves not be asked to pay and that the incentives be structured to
reward agreements that are upheld on review in the formal system.
 3.2 Expanding our understanding of oath-taking
The most animated discussion at the National Conference was on the controversial subject of the
practice of trial by ordeal, generally referred to in Liberia as sassywood. It is common, in Liberia’s
customary justice, for suspects or defendants to be asked — or to request — to perform an act or submit
to a test to prove their innocence or establish their guilt. A great deal has been written on the practice of
trial by ordeal; a catalogue of the most common types can be found in the USIP study.51 The following
description will therefore be brief.

Trial by ordeal is fundamentally based on supernatural beliefs and takes a variety of forms along a
spectrum from objectively harmless to deadly. In the mildest versions, suspects might be asked to
do an everyday act, such as picking up a light object from the ground. If they are guilty of the charge
against them, it is believed that they will find this task impossible. In another similarly harmless
although more invasive form, suspects might be asked to eat or drink food or water that is
objectively harmless — often that they have prepared themselves. If they are guilty, or dishonest, it
is believed that the substance will make them ill within a specified period of time. In more serious
and dangerous forms of trial by ordeal, suspects are made to perform a dangerous act such as to
place their hands in hot oil, place a hot metal object against their skin or drink tea made from a
poisonous tree bark (the eponymous sassywood). It is believed that, if innocent, they will be
protected from the ill effects of the act; if guilty, they will suffer the expected harm.

One of the four small group discussions on the second day of the National Conference was devoted to
the question of how to strengthen customary justice and improve the traditional chiefs’ ability to curb
unlawful practices such as trial by ordeal on their own, rather than having the formal system impose
regulation on them. Participants insisted that some forms of trial by ordeal should be retained, provided
they were undertaken voluntarily and did not cause physical harm to the person to whom they were
administered. The final official conference recommendations included the request that the
Government distinguish between “good sassywood” and “bad sassywood,” prohibiting only the latter.

3.2.1 A brief history of trial by ordeal under Liberian law

In 1916, the Supreme Court of Liberia outlawed trial by ordeal that results in death, and declared that, in such
cases, those who administer the ordeal can be tried for murder.52 In 1940, the Supreme Court upheld this
decision and declared all forms of trial by ordeal to be unconstitutional and in violation of Liberia’s organic
law. Specifically, the Court found that the practice violated Article 21(h) of the Constitution, granting the right
not to be compelled to give evidence against oneself.53 This decision was upheld in 2005.54 Seeking to
explain the judiciary position on trial by ordeal at the National Conference, Justice Minister Tah stated:

The rationale for the position of the Court stemmed from the fact that the accused in a trial
by ordeal is denied many fundamental legal rights guaranteed a criminal defendant during
trial, such as the right to legal representation, the right to due process of law, the right to
104 protection against self-incrimination or coerced confession, the right to a jury trial, the right
to an appeal, the right to protection against cruel and unusual punishment, and so forth.55

Both jurisprudence and the Justice Minister’s position are contradicted by the Hinterland
Regulations (2001), which permit non-dangerous trial by ordeal.56

Irrespective of the law, many forms of trial by ordeal continue to be practised throughout the
country. The explanation commonly given is that there is no other equally reliable method of
determining guilt or innocence, particularly in cases of witchcraft.57 Attempts to regulate or curtail
trial by ordeal can backfire; the perception of many Liberians is that, as a result of the ban on trial by
ordeal, witchcraft is on the rise.58 Public frustration with the ban is high, and reliance on “traditional
detectives” using supernatural methods of evidence collection is strong.59 It is not difficult to
understand the root of this frustration — imagine the reaction in the United States or France if a rule
were imposed banning the use of DNA evidence or fingerprints, simply because the legal
establishment did not believe in such methods of evidence collection.
 Chapter 5
The policy proposal here is to take up the recommendation from the Conference that “good
sassywood” be distinguished from “bad sassywood,” and then to take it a step further, distinguishing
between good sassywood that selects the guilty from a pool of suspects using supernatural means,
from good sassywood that commits an individual to tell the truth, i.e. to identify any of the methods
commonly grouped together as trial by ordeal that are in fact no more than an alternative form of
oath-taking. Such practices could then be defined under a different term, and their use permitted in
at least customary pre-trial conferences, if not also in statutory court proceedings.

The most common form of ordeal referenced by participants to epitomize “good sassywood” was
kafu. In the USIP study, kafu is defined as food prepared and shared among all parties to a complaint
and acts as a group oath to tell the truth. Conference participants suggested that even water can
serve as kafu, and that within some period of time after its use, it will sicken a person who drank it
and then did not tell the truth. Participants asserted that this type of oath was no different from
swearing on a Bible or Koran in statutory courts.

3.2.2 Constitutional concerns

This policy proposal depends on an assessment of whether kafu — or any other traditional oath-
taking — is in violation of the constitutional protections referenced by the Justice Minister at the
National Conference. The analysis here uses kafu as an illustration — a similar analysis could be
conducted on any proposed form of customary oath-taking. The constitutional concerns here
would be:

■ Right to legal representation, jury trial and appeal: Because kafu does not alter the process of
justice itself — from pre-trial conferences and plea negotiations through trial and appeal – it
would not impinge on a suspect’s right to representation, trial or appeal.
■ Right to protection against self-incrimination: Because kafu is taken prior to testifying, the kafu
itself need not impinge on this right. It is rather the questions that are posed after ingesting the
kafu that could impinge on this right. However, the same protections that are in place to guard
against infringement on this right after a suspect has been sworn to honesty on a Bible or Koran
could be similarly employed.
■ Right to protection against coerced confession: Because kafu is objectively harmless, is ingest-
ed by multiple parties to a complaint and not only by suspects, and its anticipated supernatural
side effects would occur far in the future, there is no reason it would be perceived to be more
coercive than swearing on a holy book. The symbolism is similar — those who do not tell the
truth will suffer supernatural repercussions.
■ Right to protection against cruel and unusual punishment: Since it is a voluntary oath and only
an objectively harmless substance is ingested, kafu would not constitute punishment.

The policy recommendation is to apply this type of analysis to other forms of ordeal currently used
to establish the honesty of a suspect or witness, and offer it as an alternative to defendants and 105
witnesses who prefer a traditional type of oath to swearing on a holy book. Introducing this option to
the formal system also has the potential to increase the public’s faith in the system, simply because
they understand and believe in its procedures.

3.3 Documenting customary law

The two policy proposals discussed so far relate to traditional processes of dispute resolution that
could be applied in the context of Liberia’s statutory law. This final proposal relates instead to using
the statutory court processes, applying Liberia’s customary law.

As described above, Article 65 of the Liberian Constitution states that the formal court system shall
apply both statutory and customary law. However, participants universally noted that Liberia’s 16
tribes each have different customary laws, that judges, particularly at the circuit and Supreme Court
levels, are not knowledgeable about customary law, and that customary law has never been
documented and thus cannot be reliably referenced by a statutory court.
 3.3.1 Documentation vs. codification
The proposed policy initiative to document customary law should not be confused with a push to
codify it. There are strong arguments against codification of customary law: that one strength of a
customary system is its flexibility — its ability to shift based on the circumstances of a case; that
customary law is living, changing as the circumstances change; and that codification would
stagnate it in time. Pragmatically, it is argued that customary law as described will vary sharply from
customary law as practiced, and that because of the effort required to reliably capture it, any
codification project is doomed to misrepresentation.60

In Liberia, these concerns are complicated by the fact that the customary or tribal courts that were
established by the Liberian Government just after independence were provided with formal, statutory law
that they were to administer: the Hinterland Regulations. The premise of the Hinterland Regulations was
that there would be one legal system governing the indigenous inhabitants of Liberia and another system
governing the settler population in Monrovia. It is the existence of these parallel statutory systems that
leads one to describe Liberia as having a “dual legal system” – a system in which two different sets of
codified laws are applied simultaneously to different segments of the population. Each system had its own
government-appointed adjudicators, its own appeals process and its own constitutional authority.

In addition to this dual legal system, Liberia has a plural justice system. For example, a traditional zoe — a
leader in the female sodality of the Sande — might be called on to settle a dispute relating to violation of
rules of the Sande. This matter would be purely customary — the rules governing this society are part of
neither the Hinterland Regulations, nor the Liberia Code of Laws. However, when a Paramount Chief in
Nimba County is called upon to settle a land dispute between two citizens of his district, this might be
called a “customary” matter, though it falls under the statutory jurisdiction of the Hinterland Regulations
and is being decided by a government employee of the Ministry of Internal Affairs (the Paramount Chief),
who has a statutory mandate to adjudicate customary law matters arising in his district in a tribal court.61

The policy recommendation to document the customary law would encompass both of the
above situations — the purely customary dispute resolution and the chief’s court operating with
arguable statutory authority — and would include the dispute resolution process, the actors
involved, the evidence collected, the resolution, its enforcement, and any other relevant details
of the law as intended and as applied.

3.3.2 Statutory law for the traditional people: The Hinterland Regulations
The status of the Hinterland Regulations is currently in doubt. A recent report on land disputes from
the Norwegian Refugee Council explains:

The original Law of the Hinterlands was enacted in 1905 and was amended in 1914 and
1949. The content of the 2001 version issued by the Ministry of Internal Affairs is
106 apparently mostly unchanged (with some few alterations) from the 1949 version, despite
the fact that most of the law had been apparently repealed in 1956 by the passing of
section 600 of the Aborigines Law. The Aborigines Law was repealed in turn through its
exclusion from the 1973 revision of the Liberian Code of Laws. In addition, the Law of the
Hinterlands has since been republished, but it remains uncertain whether it is ‘law’.62

The Regulations were distributed to the chiefs, who were tasked with enforcing and interpreting
them as local laws. Some Liberian legal scholars have looked back on this time as one of greater
integration of the formal and customary systems, pointing out that:

There are good examples of the integration of informal into formal justice systems in
many parts of Liberia, where the courts of traditional chiefs are integrated into the
authority and power structure of government. For example, a traditional court like the
Paramount or Clan Chief’s Court exercises considerable statutory jurisdiction over
criminal matters, extending to powers of imprisonment not to exceed three months.63
 Chapter 5
However, the Hinterland Regulations were also inherently divisive, based as they were on defining a
large segment of the population as uncivilized and therefore inferior.

The continued validity of the Hinterland Regulations is problematic because this second legal
system places judicial power in the hands of the executive branch – in which the final appeal is to the
president, not the court – in violation of the separation of powers clause in Article 3 of the
Constitution, discussed above. It is also problematic because the Regulations themselves define
native inhabitants as second-class citizens, in violation of Article 11(c) of the Constitution, which
provides for equal protection under the law for all citizens of Liberia.64 This persistence frustrates
the formal justice sector, as evidenced by the Justice Minister’s comment at the National
Conference that, despite “several Supreme Court decisions and the enactment of many acts of
legislature rendering most of the provisions of the Hinterland Regulations illegal or obsolete, they
continue to exist.”65

Despite these problems, traditional chiefs argued vociferously in the regional consultations leading up
to the National Conference that they wanted the Hinterland Regulations back. This argument might be
best understood as a claim for the legitimacy that the chiefs had under the Hinterland Regulation
system, in which they were empowered to settle local disputes, and to rule according to law.

The validity — or lack thereof — of the Hinterland Regulations may therefore be something of a
distraction; the key question is not whether there is a separate statutory legal system for the rural
areas or traditional peoples of Liberia, but rather whether the traditional chiefs have the power to
adjudicate the day-to-day disputes that arise in any community. The question of the validity of
customary law is therefore better focused on the yet uncodified customary justice through which
day-to-day disputes are resolved.

3.3.3 Analyzing customary law

Apart from the Hinterland Regulations, and setting aside the academic debates over codification,
there remains a worthwhile exercise in simply documenting customary norms. This law can then be
compared to the formal code, to reveal where the two are consistent, and where they are not – a
preliminary activity to any future integration, harmonization, or codification.

The policy recommendation therefore is to write down customary dispute resolution guidelines,
rationales and practices, and to then analyze their similarities and differences to existing statutes,
and their compliance with constitutional constraints. No distinction would be drawn regarding the
origin of the law or custom being applied; if a traditional chief is applying a provision of the
Hinterland Regulations, or of the Penal Code, which has become the accepted legal framework
governing a particular pattern of events, then this provision will be recorded as an example of the
living customary law.
107
Because of the nature of customary law, such a documentation project would be a massive
undertaking, requiring not simply speaking with the chiefs who preside over customary courts, but
observing proceedings, discussing with participants when and how dispute resolution practices
differ from the customary norms as described, what circumstances might lead to a different
outcome, etc. It would be not unlike the task of drafting a restatement of the law of a common law
jurisdiction, in the absence of a written case record.

Dependent on the outcome of the documentation exercise, a future policy recommendation might
be to amend statutory law to incorporate certain customary guidelines on sentencing, measuring
the severity of a crime, or granting leniency. An alternative recommendation might be to certify
experts on customary law in different ethnic groups and geographical regions, who could be called
upon to provide interpretation and expertise in formal cases where customary law is material. In the
absence of any concrete documentation on the content of customary law, it is impossible to know
whether such proposals would be appropriate and in line with Liberia’s legal constraints and the
 government’s policy priorities.66 Nevertheless, this uncertainty should not prevent researchers,
Liberian legal scholars, and customary justice actors from taking the first step.

4. Maintaining momentum: Next steps for justice reform

Following the successful National Conference, the time is ripe for Liberia to pursue creative justice
reform strategies that expand the official role of the traditional chiefs in contributing to dispute
resolution, in a manner that provides the justice that the Liberian people want, within the bounds
established by the Liberian Constitution. But when resources are scarce and law reform is perceived
to be urgent, how does the Government make the leap of faith required to embark on an untested
new policy initiative in the justice sector? If the political will is established, how does the Government
move from policy to action?

The policy proposals presented here are to: (i) create a formal role for administrative review of
criminal matters by chiefs’ courts, using the outcome of that review to structure plea agreements;
(ii) expand the definition of legally permissible oath-taking to incorporate non-harmful customary
ceremonial oaths; and (iii) document the norms and procedures of customary law. The proposals
could stand a good chance of successful roll-out in Liberia, for three reasons. First, they are distilled
directly from an extended national, iterative consultative process, which was itself founded on
extensive field research. Second, they can be implemented within the existing legal framework, and
thus do not require extensive public debate or legislative approval for initial implementation, but
rather can be initiated rapidly. Finally, the proposals complement each other, and each lends itself to
piloting in a single region or district of Liberia prior to national roll-out.

However, it is not these specific initiatives so much as the rationale that underlies them that the
Liberian Government and its partners should consider as they move from gathering information on
enhancing access to justice to taking actions designed to respond directly to the concerns raised by
the Liberian people. At their core, the above proposals highlight two conceptual balancing acts and
address an underlying information gap, all essential to providing more acceptable justice for the
Liberian people.

The first balancing act concerns justice outcomes. It revolves around the question of how to respond
to the desire of most Liberians to have their disputes — including petty criminal matters — handled
by traditional leaders who dispense justice that more closely reflects their values. This desire must
be balanced against the conviction of Liberian legal professionals and government leaders that “rule
of law” in Liberia demands fidelity to the Constitutional principle of the separation of powers. The
first proposal gives an example of this.

108 The second balancing act focuses on the legal process and the lack of trust expressed by many
Liberians in a system that rejects the methods they believe in for gathering evidence and determining
guilt. The demand for recognized forms of supernatural pressure for honesty must be balanced
against the Liberian Constitutional values of due process. The second proposal reflects this.

Finally, the knowledge gap in the formal legal system as regards the procedures, rules, and norms of
the customary system creates an obstacle to incorporating elements of customary justice into the
formal system. The third proposal offers one way of narrowing this gap.

As Liberia’s post-war peace proves increasingly stable, international support for rule of law and
access to justice initiatives is growing, with the United Nations, bilateral donors, and numerous
NGOs launching campaigns in the sector. At this crucial juncture, the follow-up to the National
Conference on Enhancing Access to Justice provides a perfect platform for the Liberian Government
to assert and maintain control of the justice reform agenda in the country. By applying the above
rationale — if not taking up the discussed policy proposals themselves — the Government will be
 Chapter 5
able to direct the course of national justice reform so that it may stand a good chance of responding
to the fundamental concerns of the Liberian people, respecting the basic tenets of the Liberian
Constitution and generating the information necessary to make well-informed policy decisions in
the future.

footnotes issues. The judiciary is headed by a 16 See for example D. Pimentel, ‘Rule of Law
1 D. Isser, S. Lubkemann and S. N’Tow, ‘Looking Supreme Court of five justices, with Reform without Cultural Imperialism?
for Justice: Liberian Experiences with and jurisdiction over constitutional issues and Reinforcing Customary Justice through
Perceptions of Local Justice Options’ (2009) appellate jurisdiction over all cases. Collateral Review in Southern Sudan’
11 See, for example, D. Isser, Re-thinking Legal (summary for USIP, GWU and World Bank
United States Institute of Peace
<http://www.usip.org/resources/looking- Pluralism and the Rule of Law in Post-Conflict Conference Agenda, Washington DC, 17-18
justice-liberian-experiences-and-perceptions- and Fragile Countries, Discussion Paper for November 2009) (cautioning that Rule of
local-justice-options> at 7 January 2011. the Customary Justice and Legal Pluralism in Law initiatives consisting of “attempts to
2 Ibid 13. There is ongoing debate over use of Post-Conflict and Fragile Societies import foreign (usually Western) legal
the terms “formal”, “informal”, “customary” Conference, 17-18 November 2009. concepts and structures” will fail because of
12 The phrase “human rights” seems to have their neo-colonial overtones); M. Mutua
and “traditional” in reference to legal
systems and access to justice globally. This taken on a negative connotation for the (ed), Human Rights NGOs in East Africa:
concern stems primarily from a fear that majority of Liberians, who associate the Political and Normative Tensions, University
“formal” implies something of greater term with outsiders interfering in child of Pennsylvania Press (2009) (exploring the
value. For purposes of this article, no such rearing, gender relations, and punishment legitimacy of international human rights
judgment is intended; “formal” will be used of offenders. It is extremely common for organizations in East Africa); B. Ibhawoh,
to delineate the legal system based on the participants in community meetings on Stronger than the Maxim Gun: Law, Human
Liberian Constitution, statutes and justice issues to assert, for example, that Rights, and British Colonial Hegemony in
common law founded on the United States “child rights” are the cause of disrespect, Nigeria (2002).
legal system and falling under the Ministry juvenile delinquency and social unrest. 17 Comments by representatives from
of Justice, while “informal” and “customary” When government officials promote human Ministries of Justice, Gender and
will be used interchangeably to indicate the rights, it is therefore very unlikely that the Development, and the Law Reform
justice provided by the hierarchy of chiefs Liberian public is their intended audience. Commission at the Regional Consultation
13 The Paris Declaration on Aid Effectiveness for the National Conference on Enhancing
under the Ministry of Internal Affairs.
Liberia’s pluralist justice system includes (2005) attempts to guide the relationship Access to Justice, Monrovia, February 2010.
additional actors providing informal justice, between countries that are aid donors and 18 Isser et al, above n 1.
such as elders, leaders of sodalities, and countries that are aid recipients by 19 See, for example, A.A. Dulleh, ‘300 ‘Witches’
persons of wealth and influence; they will identifying five key “partnership Confess to Witch Doctor’, New Democrat,
not be addressed in depth here. commitments”. The first is ownership; the (Monrovia) 5 April 2010 <http://allafrica.com/
3 Liberians generally refer to the “14-year civil outcome of the Paris Declaration is that all stories/201004051153.html> at 7 January
war,” meaning the period from 1989-2003. donor assistance must be in support of 2011; Anon, ’“Ritualistic Killings” Pose
4 Ibid 21. developing country strategic plans. See, The Difficulties for Maryland’, The Analyst,
5 Ibid. Paris Declaration on Aid Effectiveness and the (Monrovia) 6 April 2010 <http://allafrica.com/
6 Ibid 73-77. Accra Agenda for Action (2005/2008) stories/201004070937.html> at 7 January
7 Findings of the LWG presented in Monrovia, <http://www.oecd.org/dataoecd/11/41/344 2011.
Liberia, 9-10 December 2009. 28351.pdf>. 20 See, for example, B.J. Boima, ‘Insults Result
8 Isser et al, above n 1, 92. 14 See, for example, the United Nations to One Burned Alive, One Shot in the Head’
9 Ibid. Development Programme’s (UNDP) New Democrat, (Monrovia) 1 April 2010
10 Liberia’s judiciary has three levels. justification for their rule of law work in <http://allafrica.com/stories/2010030116
Magisterial courts are the courts of first Liberia at <http://www.lr.undp.org/rol.htm> 45.html> at 7 January 2011; S Golafale,
109
instance throughout the country. at 7 January 2011; USAID Liberia’s matrix ‘Mob Justice – A Reality in Today’s Liberia’
Magistrate judges are required by law to demonstrating how programs align with Ceasefire Liberia, 23 April 2010
hold a law degree, but of the approximately Liberia’s Poverty Reduction Strategy (PRS) at <http://ceasefireliberia.com/2010/04/mo
350 serving magistrates, only 12 have any <http://liberia.usaid.gov/node/189>; and The b-justice-a-reality-in-todays-liberia/> at 7
formal legal training. Magisterial jurisdiction Carter Center’s description of their Rule of Law January 2010.
over criminal matters is extremely limited, portfolio in Liberia as a response to the PRS at 21 Isser, above n 11.
with most cases requiring referral to a <http://www.cartercenter.org/peace/conflict_ 22 C.P. Tah, (speech delivered at the opening of
circuit court. Above the magisterial courts resolution/liberia-homepage.html>. the National Conference on Enhancing
are 20 circuit courts – a dedicated civil law 15 See for example Customary Justice and Legal Access to Justice, Gbarnga, Liberia, 15 April
court and five dedicated criminal courts in Pluralism in Post-Conflict and Fragile 2010).
Montserrado County, each handling Societies (Conference Packet for a 23 The Hinterland Regulations were developed
different types of crimes, and one general Conference hosted by United States Institute in 1905 as a secondary formal legal
circuit court in each of the remaining 14 of Peace, George Washington University, structure governing the indigenous
counties. There are five additional World Bank, Washington DC, 17-18 population of Liberia, and their existence is
specialized courts located in Montserrado November 2009)(providing case studies often the basis for the assertion that Liberia
County, handling probate, debt, labor from Sierra Leone, Afghanistan, Sudan, has a dual legal system. They were to be
disputes, traffic violations and juvenile Liberia and others). administered by the hierarchy of chiefs
 falling under the Ministry of Internal Affairs, Justice and presented to participants at the imprisonment in Liberia are above the trial
and did not apply to Liberians of American National Conference on Enhancing Access jurisdiction of a magistrate judge.
descent. While the Hinterland Regulations to Justice, April 2010). 47 Criminal Procedure Code, 1 LCLR §2:16.5
were applied by arguably traditional leaders 32 Constitution of Liberia 1986 art 3. 48 See Coleman, above n 28, 60 (stating
(the national hierarchy of chiefs is itself a 33 Executive Law, Ministry of Internal Affairs: “Traditions and customs count
construct of the formal system and not an Duties of the Minister, 3 LCLR 12, s 25.2 compensation as a precondition for their
accurate reflection of traditional leadership (1972). reconciliation ceremonies. This is echoed in
structures) and applied to indigenous 34 See J.A. Barbu, ‘An Analysis of the Formal claims that “forgiveness comes after the
people, they do not constitute “customary” Legal Framework Governing Customary payment of damages”, and calls for
justice as the term is typically used. Section Law in the Republic of Liberia’ (submitted to ‘reconciliation through disbursement’).
2.3 contains a more detailed discussion of the United States Institute of Peace (USIP) 49 Ibid 59.
their origins and current status. as part of its project, From Current Practices 50 See ‘Four Dead in Religious Clashes in
24 See Executive Order Number 20, of Justice to Rule of Law: Policy Options for Liberia: Official’, AFP, 27 February 2010,
Establishing a Law Reform Commission, Liberia’s First Post-Conflict Decade, 2009, <http://www.google.com/hostednews/afp
Monrovia, 11 June 2009 11) (noting that the Act is unavailable, but /article/ALeqM5jwcBPvPiQdkWURQ3VJqa
<http://www.emansion.gov.lr/doc/EXECU referenced in the 1916 case of Jedah v ZohaGmrg> at 5 January 2011; ‘Justice
TIVE ORDER _ 20 - ESTABLISHMENT OF Boyah, 2LLR 265). Ja’neh Ordered Me to Release Lofa Rioters’,
LAW REFORM COMMISSION.pdf> at 5 35 Gray v Beverly (1907) 1 LLR 500 (The Court New Democrat, (Monrovia) 18 May 2010,
January 2011. notes: “The Act created an Interior <http://allafrica.com/stories/2010051808
25 Ibid 2. Department and provided for the 62.html> at 5 January 2011.
26 Observers theorize that refusal to pass the appointment of a Secretary of Interior as its 51 Isser et al, above n 1, 60-61 (This study
LRC Act was not a reflection on the LRC Act head, upon whom was conferred very broad provides an excellent catalogue of rural
itself, but rather political retaliation against duties and authority in relation to matters Liberian views on different forms of trial by
presidential pressure related to the affecting the aborigines of the country”, but ordeal.)
controversial Threshold Bill to redraw the actual text of the 1869 Act is currently 52 Jedah v Horace (1916) 2 LLR 63.
legislative districts; this suggests that the unavailable); see also, Barbu, above n 34, 7. 53 Tenteah v Republic of Liberia (1940) 7 LLR 63.
LRC Act will ultimately succeed. 36 Barbu, above n 34, 27. 54 Tah, above n 22.
27 H.E. Ellen Johnson Sirleaf (Remarks to the 37 Ibid 12 (citing Jedah v Horace (1916) 1 LLR 55 Ibid.
National Conference on Enhancing Access 265; Karpeh, Manning, and Odei v Verdier 56 Hinterland Regulations Revised 2001 art 73
to Justice, Gbarnga, Liberia, 15 April 2010). (1963) 15 LLR 285. (stating “Ordeals, however, of a minor
28 F. Coleman, Association of Female Lawyers 38 Jedah v Horace (1916) 1 LLR 265; Karmo v nature and which do not endanger the life of
of Liberia (AFELL) (writing on traditional Morris (1919) V2 LLR 317; Posum v Pardee the individual, shall be allowed and is hereby
justice mechanisms), ‘Post-Conflict (1935) 4 LLR 299; Ayad v Dennis (1974) 23 authorized.” This Article then provides for
Peacebuilding in Liberia – Much Remains to LLR 165; Jitco v Sesay (1990) 36 LLR 695; the Certification of Ordeal Doctors by the
Be Done’, Center for International Peace In Re Broderick (2000) 40 LLR 263. Case Ministry of Internal Affairs, and to lay out the
Operations, (report of the Third summaries taken from Dube, above n 31 procedures for re-trial if requested by a
ZID/KAIPTC Seminar, Accra, Ghana, 1-3 (unless otherwise stated). party deemed guilty by the initial ordeal).
November 2007, 56). 39 Odel v Verdier (1963) 15 LLR 285. This 57 Comments by participants in Regional
29 Ibid 55 (stating that “while the more solution to the separation of powers Consultative Meetings in Bomi and Bong
formalized Western models often allow for problem does not have support from the Counties, February and March 2010; see
only one form of justice — retributive, current Justice Minister. also Coleman, above n 28, 60.
restorative or reparative — these traditional 40 Ayad v Dennis (1974) 23 LLR 165. 58 See Isser et al, above n 1, 60-65.
institutions seek to combine several of 41 Nah v Judge Topor (1998) 39 LLR 144. 59 See, for example, ‘Free Legal Services for
these and other elements in keeping with 42 Posum v Pardee (1935) 4 LLR 299. Yancy, Morias, Others’, The Daily Observer
the values of their communities”). 43 Constitution of Liberia 1986, Art. 65 (Monrovia), 2 April 2010, <http://www.liberianob
30 Liberia currently operates under the 1986 (Emphasis added). server.com/node/5555> at 5 January 2011
Constitution, loosely patterned on the 44 Koryon v Korvayan (1982) 30 LLR 246. (citing the Minister of Justice explaining
United States Constitution. It can be and 45 Insurance Company of North America v that “in Liberia’s criminal justice system,
110 has been argued that the Constitution lacks Bhatti and Sons Inc. (1988) 35 LLR 191. evidence produced by a ‘witch doctor’ could
legitimacy for a large majority of the 46 Permitting plea negotiations would create not be accepted for prosecution of any
population, as it was drafted with the goal of prosecutorial discretion in criminal courts, suspects in criminal matters such as
solidifying the power of the settler minority, such that a prosecutor could offer to charge murder”).
often at the expense of the indigenous a defendant with a less serious crime in 60 The term “ascertainment” is often used to
majority. Additionally, the Constitution — exchange for that defendant agreeing to describe the attempt to uncover the
drafted as it was during a period of rule by plead guilty to the lesser charge. This would customary laws or norms applying to a
the leader of a military coup — sought to speed up the processing of criminal particular case. The term is problematic
entrench the executive power rather than matters by reducing the number of trials, because of its colonial usage (see A.N. Allott,
genuinely seeking to balance the powers of and could reduce crowding in the prisons by ‘The Judicial Ascertainment of Customary
the three branches. Nonetheless, the 1986 reducing the volume of pre-trial detainees Law in British Africa’ (1957) 20(3) The
Constitution is the law of the land in Liberia. as well as decreasing average sentences. Modern Law Review, 244) - since it does not
It protects fundamental human rights, and Negotiations can result in a defendant precisely apply to the proposal here, it will
includes some notable constraints on the agreeing to perform community service or not be used.
role of customary justice. compensate the victim of his or her crime in 61 See also Barbu, above n 34, 4 (writing on
31 J. Dube, ‘Summary of Supreme Court of lieu of imprisonment. Plea negotiations are the legal context of customary and formal
Liberia Opinions on Customary Law only being considered in circuit courts justice in Liberia, explaining that discussion
Matters’ (submitted to the Ministry of because most criminal charges leading to of the Hinterland Regulations is “not a study
 Chapter 5
of the traditional indigenous African Justice January 2011 (internal citations omitted); 65 Tah, above n 22.
systems, but rather a study of the see also P Banks, ‘The Role of Non-State 66 Executive Law, Ministry of Internal Affairs:
customary legal system created by Justice Systems in Fostering the Rule of Duties of the Minister, 3 LCLR Title 12, s
regulations and statutes”). Law in Post-Conflict Societies’, (a project of 25.2(n) (1972). (This activity is part of the
62 A Corriveau-Bourque, ‘Confusions and Palava: the United States Institute of Peace [USIP] formal responsibility of the Minister of
The Logic of Land Encroachment in Lofa and the Fletcher School of Law & Internal Affairs, who is charged with
County, Liberia’, NRC Reports 2010 (internal Diplomacy, Tufts University, 2007) 26. “overseeing the collection and publication
citations omitted) <http://www.nrc.no/ 63 Coleman, above n 28, 58. of the laws and customs of the Liberian
arch/img.aspx?file_id=9481898> at 5 64 Constitution of Liberia 1986, art 11(c). tribes”.)

111
 Chapter 6
CHAPTER 6
Ensuring Access to Justice through
Community Courts in Eritrea
6
Senai W. Andemariam*

Introduction

The Eritrean communities have an age-long tradition of local dispute resolution in accordance with
their respective customary laws, most of which are codified and date back to the 15th century. This
tradition is considered part of the day-to-day life of the community and is a reflection of the desire
to maintain peace among all of its members.

On 22 September 2003, the Government of Eritrea enacted Proclamation 132/20031 to establish

community courts2 and thereby accomplish two objectives.3 The first objective is to enable greater
participation of the community in the judicial process and make the judicial process accessible to
the larger community, the poor in particular. This objective is achieved by allowing the community to
elect the judges of the community courts, at least one of whom must be a woman, and by
establishing hundreds of community courts. The second objective is to integrate customary dispute
resolution mechanisms in the national legal system and thus alleviate the burden of higher courts.
To achieve this two-tier objective, community court judges are allowed to reconcile disputants based
on customary laws and practices. If the parties fail to reach a compromise, the community court
judges then pass judgments based on national laws. Any disputant who does not agree with the
judgment can appeal to higher courts. Settlement at the community courts of those disputes that
would have been previously brought to the higher courts has alleviated the burden of such courts.

A report from the Community Courts Chief Coordination Office of the Ministry of Justice shows that
from January 2004 to mid-2009, about two-thirds of cases brought to the community courts were
settled by agreement (compromise) between the disputants. The steady success of community
courts in ensuring peaceful settlement of disputes has inspired the wish to expand jurisdiction of
community courts and attracted increasing assistance to strengthen them. Growing interest in
customary laws has also revived national studies on them, which encouraged the incorporation of
key principles of customary laws into Eritrea’s basic laws. 113

This chapter will review the contribution and impact of community courts in creating access to
justice, empowering the poor to participate in the judicial process, and in efficiently integrating
customary dispute settlement in the national legal system. Accordingly, it will illustrate how the two
objectives of the establishment of community courts are being progressively achieved.

* Lecturer of Law, Law School, College of Arts and Social Sciences, Eritrea. A Fulbright Scholar and a former judge at the
Ministry of Justice, State of Eritrea, Mr Andemariam is also a member of the International Law Association, the
American Society of International Law, the Society of International Economic Law and IQsensato. In 2007, he was
selected as a national consultant for evaluating the impact of community courts in Eritrea for the 2004-2006 period.
He has also worked on studies and projects on strengthening community courts, in drafting legislation for expanding
jurisdiction of community courts and in the integration of customary law principles in basic Eritrean laws, particularly
the sentencing regime of the Draft Penal Code of Eritrea.
 1. Evolution of the establishment of community courts

The history of the establishment of community courts may be viewed from two perspectives. First,
the present-day community courts are intended to be a partial reflection of the long history of the
various communities of the Eritrean society in settling legal disputes based on customary laws.
Accordingly, the nature of the customary laws within the Eritrean communities and their interaction
with successive governments through the customary laws will be described.

Second, the history of efforts in various times to consolidate and use the basic notions of the Eritrean
customary dispute resolution norms at the national levels will be described. Reference will be made to
previous attempts to weaken or destroy the use of customary laws in dispute resolution in Eritrea.

1.1 The nature of Eritrean customary laws

Communities have always developed rules and procedures for settling disputes that arise among
their members. As the socio-economic conditions of these communities grow and evolve — and
hence the disputes become more complicated — it becomes more imperative that such rules and
procedures adapt accordingly. Also, values and norms of these dynamic means of dispute
settlement are part of the daily life of the community, and therefore they can be transmitted from
one generation to the next. When the various communities living in a given country have developed
indigenous settlement mechanisms that guarantee peaceful co-existence among its citizens,
national laws should be developed in line with the inherent values of the society in question.

Eritreans are one of the people in sub-Saharan Africa — if not the only ones — to have had codified
or written4 customary laws.5 The preambles of most of these customary laws claim that the laws
were enacted as far back as the 15th century. For example:

■ The preamble to the 1910 amendment to the Customary Law of Loggo Chwa (the name of a
district in the Eritrean highlands) claims that the first version of the law was enacted in 1492 AD
during the reign of Emperor Eskindr of Ethiopia; the second version in 1658 during the reign of
Emperor Fasil of Ethiopia; the third version during the early days of the Italian occupation of
Eritrea (1900); and the final version during the British Military Administration of Eritrea in 1943.
■ Similarly, in a September 1991 interview, Reverend Haile Hadera, an Orthodox Christian priest,
one of the elders involved in amending the customary law of Adkeme-Mlga’e (coined after the
two alleged forefathers of the district in the Eritrean highlands within which this customary
law applies), claimed that the Adkeme-Mlga’e law was over 800 years old (audio cassette copy
of interview available). Another source suggests that the law of Adkeme Mlga’e evolved during
the reign of Emperor B’edemariam (1467-1477) and it was modified in 1873 during the reign of
Emperor Yohannes IV of Ethiopia. In 1940, the law underwent its final amendment: in 1944,
Part I was published in the Rassegna di Studi Etiopici by Carlo Conti Rossini, and in 1953 Part
114 II was published in the same journal. Both parts of Tigrigna version were published in single
edition in 1944.
■ Moreover, according to a tradition, the customary law of Adgna-Tegeleba (a name indicating the
two villages of Adgna and Tegeleba in the Eritrean highlands, where this customary law applies),
was first codified with the name The Order of M’em Mhaza (M’em Mhaza indicating a region in
the southern highlands) during the reign of the Tigrayan ruler Ras Welde-Slassie (1750-1770). It
was later amended in 1873, again in 1904, and finally published in its present form in 1946. This
code combines the various previous codes known as Mai Adghi, Serao, Enda Deko, Enda Fegrai
(Tigrigna families in the southern highlands), in addition to The Order of M’em Mhaza.6

It can be concluded that these customary laws cover almost all the notions embodied in
conventional modern laws — substantive (civil, commercial and criminal) and procedural.

Notably, when customary law was recorded or amended, all the villages where it was applied were
proportionally represented in the assembly of elders, who would deliberate on the law-
 Chapter 6
making/amendment process.7 These elders would sit in a quiet, isolated place and debate the law in
pious solemnity for weeks and often for months or years8 before they would return to their community
and make all the contents of the law publicly known. The public was notified of any amendments to the
law and thus their awareness was raised on individual rights and duties, and the legal procedures
needed to implement them.

The striking similarities among Eritrean customary laws tend to show that there has been constant
interaction between and among the various communities of Eritrean society.9

Until the introduction of the Ethiopian Codes in the late 1950s and early 1960s, Eritrean
communities used to settle their disputes on the basis of customary law. All litigation hearings
were open to the public (hence judges were accountable) and were conducted in front of a village
judge. The litigations followed procedures that reflected fairness, secured representation of
women and guaranteed the presence of the parties and the swift execution of judgments.
Litigants enjoyed the freedom of questioning the partiality of the judges and witnesses who
testified under solemn oath. The village paid the so-called ‘blood money’ if one of its members
had killed a person from outside the village, and inter-village marriages were conducted as a
means of settling murder disputes.10

1.2 View of customary law at the national level

The following is a brief history of how the various governments that ruled the country applied
Eritrean customary laws at the national level.

Carlo Conti Rossini, an Italian scholar, notes that the Italians, who ruled Eritrea from 1890 until 1941,
encountered diverse oral and written customary laws governing a law-abiding people. Hence, the
Italians allowed the Eritrean society to be governed by its own customary laws except in matters
concerning municipal administration and those concerning Italians living in Eritrea.11

The British, who administered Eritrea from 1941 to 1951, continued the Italian tradition and allowed
legislators to amend their respective customary laws when necessary. These forefathers inked their
amendments with the further expectation that their descendants would continue to broaden and
amend these laws as needed.12

In late 1940s, the United Nations resolved that Eritrea would be federated with Ethiopia, and in 1952,
the Federal Government of Eritrea was established. However, in November 1962, with the unilateral
dissolution of the Federation and the Ethiopian annexation of Eritrea, the Emperor of Ethiopia, Haile
Selassie I wanted to impose his new codes (introduced in the late 1950s and early 1960s) on the
Eritrean society. Since Eritrean society had its own dynamic and comprehensive customary laws
embedded in the cultural fabric of its various communities, he had to abolish pre-existing laws.
115
To this end, art 3347(1) of the Civil Code of Ethiopia 1960 provided: “Unless otherwise expressly
provided, all rules whether written or customary previously in force concerning matters provided for
in this Code shall be replaced by this Code and are hereby repealed.”

However, customary laws are an integral part and a reflection of the tradition, lifestyle, belief system
and civilization of the community where they are applied. Arguably, one cannot, by the stroke of a
pen or by adding a paragraph in a new code, repeal these laws. Similarly, it can also be argued that
new laws will only be adhered to in society when its people understand the concepts of the new law
and find a way to harmonize the old with the new. This explains why Emperor Haile Selassie I failed
when he tried to introduce new codes into Eritrean legal tradition. Despite this imposition, Eritrean
society continued to follow the deep-rooted customary laws in resolving disputes.

The Dergue regime, which overthrew the Imperial Government of Ethiopia in September 1974 and
ruled Ethiopia (inclusive of Eritrea) until May 1991, followed in the footsteps of the previous imperial
 government. In May 1991, the Eritrean People’s Liberation Front (EPLF)13 liberated Eritrea. Eritrea
gained its formal independence from Ethiopia in May 1993, following a referendum held in April 1993.
Independence entitled the Eritrean people to assume full and free control of their destiny and thus
the liberty to use their customary laws and search for means of harmonizing them with other
national laws.

The EPLF had earlier started the consolidation and use of customary laws in dispute resolution. In
the late 1970s, the EPLF initiated the establishment of communal assemblies of elders in liberated
and semi-liberated areas to undertake amicable dispute resolution functions. Following Eritrea’s
liberation in 1991, the Transitional Government of Eritrea resolved to institutionalize traditional
dispute settlement mechanisms and institutions by establishing village courts that were to
function mostly in rural areas and to serve as the lowest benches of the judiciary for civil and
criminal cases.

The law that established village courts was Proclamation Number 25/1992, which amended
Proclamation Numbers 1/1991, 5/1991 and Legal Notice 3/1991. The following matters were placed
under the jurisdiction of village courts for trial of first instance:

■ In civil cases, disputes involving moveable properties for an amount not exceeding ERN2,501
(currently US$1 = ERN15) and disputes involving immoveable properties for an amount not
exceeding ERN5,001; and
■ In criminal cases, disputes involving simple bodily injury (art 539(1) of the Transitional Penal
Code of Eritrea 1957 [‘TPCE’]), simple damage to property of another caused by herds or flocks
(art 649(2) of the TPCE), disturbance of possession without use of force (art 650(1) of the
TPCE), petty insult or violence (art 794 of the TPCE), simple insult or defamation (art 798 of the
TPCE) and petty theft (arts 806-807 of the TPCE).

Village courts did not manage to produce the desired effect of enhancing access to state justice and
reducing cases at higher levels of state courts. The institution of village courts was not formally
abolished until the establishment of community courts. However, in practice, village courts faded
out and their jurisdiction was later merged into the expanded jurisdiction of sub-regional courts.
With the introduction of regional administrations in Eritrea through Proclamation 86/1996 (the
Proclamation for the Establishment of Regional Administrations), the structure of the courts had to
be aligned to the new administrative structure of the country. Thus, sub-regional courts were
created as the lowest level of courts in Eritrea. Appeals from sub-regional courts led to regional
courts, from regional courts to the high courts, and from the high courts to the Court (Bench) of
Final Appeal. With the enactment of the Proclamation to Establish Community Courts, sub-regional
courts were dissolved, and appeals from community courts are now made to the regional courts.

116 The main reason for the limited success of village courts was that they were established to function
as any other court. Although the intent was to enable them to help settle cases amicably, they were
not given any clear mandate to do so. Village courts were established by Proclamation 25/1992 as
the lowest echelon of the formal court structures. For each court, the Government appointed a
village elder to serve as judge. A number of these new judges were either illiterate and/or lacked
basic legal training, and the decisions of these single-judge village courts were neither traditional (i.e.
dispute resolutions based on local customs and customary laws) nor formal (i.e. judgments based
on national laws).

When the Government realized that the village courts were ineffective and that new community-
based legal institutions needed a clearer mandate to apply customary laws and practices, it resorted
to establishing “mediation elders” (shmagle erqi) in all communities with the aim of bringing
disputants to settle their cases out of courts. These were neither formalized dispute resolution
institutions established by law nor panels of previous customary community judges. Simply, they
were panels of village elders selected by the community for their knowledge of customary dispute
 Chapter 6
resolution who would try to mediate when disputes arose in their respective communities. Although
constituted at the Government’s initiative, these institutions were not integrated in the state legal
system because they were not allowed to adjudicate and pass binding judgments when the parties
failed to settle their dispute amicably. In addition, parties could not appeal to state courts when
dissatisfied with the local settlement.

Responding to the strengths and weaknesses of village courts and shmagle ergi, the Government
decided to establish a mechanism that would combine the character of both institutions. Like the
village courts, it would issue binding judgments if parties failed to settle their disputes amicably. Like
the shmagle erqi, the new mechanism would be allowed to make use of customary laws and
practices familiar to the disputants to try to settle the dispute amicably. Community courts were
created in 2003 to accomplish this dual task as well as to provide the communities with an
opportunity to participate in the judicial process.

1.3 The development of community courts

The present community court system was created as a logical step to bring the state legal system
closer to the people while integrating and formalizing traditional dispute resolution into its lowest tier.
Before the introduction of community courts, due to the unequal distribution of formal courts
throughout the nation, the rural people had to travel long distances and spend a great deal of money
and time to make use of the state legal system. Some people in the southern Red Sea region, for
example, had to travel over 300 km to the nearest state courts located in the port cities of Massawa and
Asseb. This long distance, together with time and money involved, heavily restricted poor people’s
access to state justice. The complex procedures and the frequent misunderstandings caused by the
differences in language and cultural background between the disputants and the judges, compounded
these problems and made it difficult to reach an amicable settlement between the disputants.

2. Brief description of Proclamation 132/2003

Issued on 22 September 2003, Proclamation 132/2003 entered into force on 1 November 2003. In
13 Articles, the Proclamation covers a range of issues including: the establishment and distribution
of community courts; the qualification, election and term of office of community court judges; work
procedures; civil and criminal jurisdiction of community courts; courtroom procedures and fees,
budget, salary and other benefits of community court judges; and cooperation with, monitoring of,
removal and/or disciplinary measures against community court judges. The following is a brief
description of the Proclamation.

2.1 Distribution of community courts and election of judges

The Proclamation (art 3) requires the establishment throughout Eritrea of community courts at any
convenient level such as a village or group of villages, districts or cities. Each community court is 117
constituted by three judges elected by the people. Article 3 (1) and (2) of Proclamation 132/2003
distinguish the three member of the court as “one judge and two nebaro”, with the judge sitting as the
presiding member. In Eritrean customary law, particularly in the highlands, the nebaro (singular
nebaray, meaning “one who sits”) consist of an even number of elders called to constitute a majority
when their votes are counted together with that of the judge. These elders, owing to their deep
knowledge of customs and of the community, assist the judge at all steps during the proceedings,
particularly in factual matters. The name nebaro seems to have been used in the Proclamation to follow
traditional terminology. In the practice of community courts however, the three members of the
community court bench are all named “judges”, even though Proclamation 132/2003 outlines some
differences in the powers of a judge and a nebaray. For example, art 3(9) of Proclamation 132/2003
states that a community court cannot take the testimony of witnesses in the absence of the judge;
whereas, in the absence of one nebaray, the judge and the other nebaray can take the testimony. Article
3(9) however, adds that judgments cannot be pronounced in the absence of any one of the three
members of the court.
 Judges of community courts are elected for two years and are eligible for re-elections. As required
by art 4, to be elected to the community courts, a person must:

■ be at least 25 years of age;

■ be free from chronic mental problems;
■ have fulfilled all national duties required from him/her;14 and
■ not have been previously convicted of theft, embezzlement, corruption or perjury.

With respect to administration, the Ministry of Justice was given the responsibility to manage and
oversee the election of community court judges, their budget and their overall functioning.15

2.2 Jurisdiction
In essence, the jurisdiction of community courts must fit within the purpose of their mandate. A
fundamental principle in determining the jurisdiction of community courts is that only cases that are
related to disputes arising from the “daily lives of communities” and ones that are “not complicated”
should fall within the jurisdiction of such courts.

Accordingly, in civil cases, the jurisdiction of community courts extends to disputes involving:

■ movable properties for an amount not exceeding ERN50,000;

■ immovable properties for an amount not exceeding ERN100,000;
■ land-related rights provided for in Proclamation 58/1994, the Land Proclamation, namely:
– the right to fence the land;
– the right to mark borders of land;
– the right to require the cutting off of branches and roots at the point where they invade
property of a neighbor; and
– protecting an allotted plot of land.16

In criminal matters, community courts have original jurisdiction over the following offences:

■ intimidation;
■ minor damage to property caused by herds or flocks;
■ disturbing the possession of another (but not where the disturbance has involved violence,
threats or the assistance of a large number of persons, or has been committed by persons
carrying arms or dangerous weapons, in which case the matter shall be taken to the regional
courts);
■ petty assault and minor acts of violence; and
■ slight offences against honor.17

118 Since the establishment of community courts dissolved sub-regional courts, art 2(c) of
Proclamation 133/2003, which amended the jurisdictions of Eritrean courts following the
establishment of community courts, provides that all criminal matters that had previously been
under the jurisdiction of sub-regional courts were to fall under the jurisdiction of regional courts.

In the first three or four years after the establishment of community courts, there was a tendency in
Eritrea not to consider community courts as part of the court hierarchy in the country, which was
reflected in the use of the term “regular” courts to identify courts other than community courts. This
notion probably came from the misguided belief that community courts were established to settle
disputes by mediation or conciliation of the parties. It should be noted however that:

■ Since the establishment of community courts, there have been four levels of courts in Eritrea:
community courts, regional courts, high courts and the Court (Bench) of Final Appeal. By law,
therefore, community courts are the lowest level of the courts in Eritrea, as were previously the
village courts, the district courts and the sub-regional courts;
 Chapter 6
■ Although art 3(10) of Proclamation 132/2003 provides that community court judges must
give parties adequate opportunity to settle their dispute by conciliation or negotiation, this
article also authorizes them to issue a judgment if the parties fail to reach an amicable
settlement;
■ Judgments of community courts are appealable to regional courts by the losing party (arts 5 (6)
and 8(5) of Proclamation 132/2003);18 and
■ The police, security officers and other government institutions are obliged, as with the other
courts, to assist community courts in their functions (art 13 of Proclamation 132/2003).

These and related provisions of Proclamation 132/2003 show that community courts are part of the
state legal system. Due to the increase in the number of disputes being settled out of court by
community courts and the growing expertise of community court judges in national laws as a result
of lessons learned from judgments of regional courts to which community court judgments are
appealed, there is increased trust in the capacity of community courts. This can be evidenced from
the current plans to expand their jurisdiction.

2.3 Procedure of community courts

Most of the basic procedures in civil and criminal matters applicable in other courts, as contained in
the Transitional Civil Procedure Code of Eritrea 1965 (‘TCPCE’) and Transitional Criminal Procedure
Code of Eritrea 1961 (‘TCRPCE’) respectively,19 have been maintained for use in the community
courts, although in a much simpler form. The main reason to introduce substance of the TCPCE and
TCRPCE procedures into the community courts is to enable the regional and other higher courts to
review properly all of the cases appealed from the community courts. These procedures include, in
civil cases:

■ dismissing a case when the plaintiff does not appear on the appointed date of trial;
■ reopening trial if the plaintiff submits sufficient evidence for his or her absence on the appointed
date of trial;
■ proceeding with trial in absentia if the defendant fails to appear on the appointed date of trial;
■ starting a new trial if the defendant submits sufficient evidence for his or her absence on the
appointed date of trial;
■ hearing witnesses either called by the parties or by the court’s own motion; and
■ fixing court fees and deciding if court fees can be waived in special circumstances.20

In criminal matters, the basic adversarial nature of the Eritrean trial proceedings has been
maintained for community court hearings. If convicted, the accused is punishable with a maximum
of ERN300. If the convicted person does not pay the fine, the court can substitute the fine with an
imprisonment not exceeding 15 days.21

Although not specifically provided for in Proclamation 132/2003, in practice the parties in civil and 119
criminal cases tried by community courts are not represented by lawyers. The principal justification
given for the avoidance of lawyers in community courts is that there is a need to maintain a balance
in the parties’ knowledge and power of argument. Another justification is the need to protect the low
level of legal knowledge of the community court judges by allowing them to lead the parties to
closure of the cases by conciliation, because in the majority of the disputes brought to them, they
consider their office as de facto conciliator of the parties.

3. A review of the work of community courts in Eritrea

3.1 A community court in action

A community court can be found in or near the district administration in any big city in Eritrea, or
even in a popular spot, or under the shade of the largest tree in a very remote village. There would
be three judges, often well over 45 years of age, dressed in original attire, at least one of whom
 would be a woman. These places are routinely visited by residents of the jurisdiction of the court,
and passers-by may stop for a few minutes to see what is going on since they may know the
arguing parties, who may be their relatives or neighbors. They may also know the three judges
and probably even attended the meeting in which they were voted into office. It is not considered
a breach of courtroom decorum for the passer-by to greet the judges and the arguing parties. If
interested in the case, passers-by can wait and see if they can be of help in settling the dispute.
Occasionally, the judges press the parties to resolve the dispute amicably. Passers-by can be
asked to voluntarily intervene in the conciliation together with some other volunteer mediators.
The judges can also be, and usually are, part of the mediating (conciliating) team. The settlement
process does not consist in hard-and-fast mediation or conciliation. Community court judges
and other persons who participate in the dispute settlement process may take on the role of
mediators, conciliators or negotiators, as fits the circumstances. It must be noted that, in this
article, the terms “conciliation”, “mediation”, “compromise”, “peaceful settlement” are used
interchangeably, without reference to their conceptual difference, generally to refer to the means
by which the parties to a dispute peacefully settle their matters outside of the court’s formal
process.

The judges may ask the disputants to select — or the judges may appoint — elders and/or
relatives of the disputants to settle the case peacefully out of court. Whether it is the judges of the
community court or other individuals requested to mediate or conciliate the disputants, the
judges, given that they live close to the parties, are available at any moment for discussion. The
complainant may finally be persuaded to receive some form of compensation from the defending
party, which would be acceptable to the customary law and tradition prevailing in that district or
village. These include covering costs of medication of an injured plaintiff, compensation in the
form of money, cattle, cereals, a determined size of traditionally woven cloth, honey, butter, salt,
stew spices or other commodities, and a public apology to the victim and his or her family, often
in front of village elders, religious leaders or the mediators/conciliators. Of the cases brought to
community court judges in January 2004 to mid-2009, over 57 percent were settled in this
manner.

If the parties fail to settle their dispute amicably, the community court judges, given their
adjudicative powers under Proclamation 132/2003, will proceed with the trial process and issue a
judgment based on the relevant provisions of substantive laws such as the Transitional Civil Code of
Eritrea 1991 (TCCE), the Transitional Penal Code of Eritrea 1957 (TPCE) or the Land Proclamation.
After a formal judgment has been pronounced, a party aggrieved with such judgment can make an
appeal to the appropriate regional court.

3.2 Level of restoration of customary laws for use in community courts

The Eritrean Government has taken an ambiguous position towards the restoration of customary
120 law. On the one hand, by Proclamation Number 2 of 1991, the Government has not repealed Article
3347 of the Civil Code of Ethiopia 1960, which provides that customary laws are not to be used as
substantive laws in resolving disputes.22 On the other hand, with the creation of community courts,
customary laws are tolerated for reaching compromises between litigants, although not explicitly
allowed by Proclamation 132/2003. It may be concluded that the Government of Eritrea has not
officially revived the use of customary laws in resolving legal disputes brought to any court, but
seemingly, the government does not oppose the use of customary laws in the amicable resolution
of disputes undertaken by the community courts.

3.3 Standards for evaluating community courts

Over the past six-and-a-half years, community courts have played a positive role in Eritrea as
shown by statistical reports, the government’s decision to further expand their jurisdiction and the
increase in interest of the international community to support them. It emerged that they have
served as an essential tool in furthering peaceful, out-of-court dispute settlements, in preserving
customary dispute resolution mechanisms and in easing the burden of higher courts. The
 Chapter 6
institutional set-up and functions of community courts in Eritrea are evaluated below, according to
the following four standards:

■ enhancement of popular participation;

■ guarantee of the representation of women and protection of their rights;
■ tackling of barriers to justice; and
■ achievement of out-of-court settlements.

3.3.1 Popular participation in the establishment of community courts

A key method employed in the establishment of community courts to enhance the participation of
Eritrean communities in the judicial process is the direct election of community court judges by the
people.23

Under Article 53 of the Eritrean Constitution 1997, a Judicial Service Commission will be
established by law to advise the President of Eritrea on the appointment of judges, supervise their
working conditions and give its opinion on these matters. The President shall appoint judges who
hold offices after confirmation of their appointment by the National Assembly. The Judicial
Service Commission has not yet been established, however. To date, the prevailing legislation on
the appointment of judges (Proclamation 1/1991 to Establish Transitional Institutions for the
Administration of Justice in Eritrea), provides that judges of the various levels of courts shall,
depending on the level of the court, be appointed by the Government of Eritrea (interpreted to
mean the President of Eritrea) or by the President of the High Court (now President of the Court
[Bench] of Final Appeal). The process of electing community court judges into office by the
people may therefore undergo a constitutional test under the Constitution’s general principles for
the appointment of judges.

Nevertheless, election is one of the most effective instruments in controlling the accountability of
officials in the various branches of the government. While the wisdom of appointing judges into
office may be questioned if viewed from the perspective of countries where judges are appointed by
the executive and confirmed by the legislative body,24 the advantages of a direct election of judges
to enhance popular involvement and a sense of local ownership in the state legal system are self-
evident.

There are no specific rules in Proclamation 132/2003 applicable to the election of community court
members. Although the lack of uniform election rules has its disadvantages,25 this was intended to
allow each community to resort to its customary process of electing community leaders and judges.
The Eritrean communities have always observed their respective norms and rituals for electing
customary law judges, called chQa Addi or dagna Addi,26 and Proclamation 132/2003 merely
requires that judges of the community courts be elected by the respective community. Such
practice has brought proximity between the people and the judicial process. 121

The participation of the people at the beginning of the establishment of the community courts by the
election process is also ensured throughout the term of office of the judges, since the latter involve
members of the community in the numerous mediation/conciliation processes that dominate the
functions of community courts.

3.3.2 The representation of women in the community courts

A notable achievement of the establishment of community courts from a gender perspective is the
representation of women on the bench. Although not specifically required by Proclamation
132/2003, in practice it is expected that at least one of the judges of the community courts be a
woman. In a country where women were not elected as village judges, this is a groundbreaking step
in securing women’s interests. Tables 1 and 2 show the male-female distribution of community court
judges in the 2003 and 2008 elections.27
 Table 1. Male-female distribution of community court judges during the first election (2003)
Region Total number of Gender Percentage of
judges Men Woman women judges
Center 165 118 47 28.5
South 639 452 187 29.3
Anseba 327 274 53 16.2
Gash Barka 531 465 66 12.4
Northern Red Sea 294 260 34 11.6
Southern Red Sea 90 67 23 25.6
Total 2,046 1,636 410 20.0

As a result of the policy of women’s participation in community courts, from 2003 to 2008, the
number of women community court judges increased by 8.4 percent.

Table 2. Male-female distribution of community court judges during the second election (2008)
Region Total number of Gender Percentage of
judges Men Woman women judges
Center 108 72 36 33.3
South 350 227 123 35.1
Anseba 135 115 20 14.8
Gash Barka 282 186 96 34.0
Northern Red Sea 171 150 21 12.3
Southern Red Sea 15 10 5 33.3
Total 1,061 760 301 28.4

The presence of women in community courts is of paramount importance both to women litigants
and to women living in various communities. First, it strengthens the Government’s policy to ensure
access to all offices and occupations on a gender-equal basis. Second, arguably the presence of a
woman in a community court gives a woman litigant an advantage because the woman judge may
be more understanding to women-specific issues, such as child maintenance, than her male
colleagues. Finally, the presence of a woman judge in the community court may encourage women
litigants to bring their cases before the court, especially in a society where women have been
traditionally barred from accessing justice directly.

3.3.3 Tackling barriers to justice

The Commission on Legal Empowerment of the Poor asserted that “at least [four] billion people [in
122 the world] are excluded from the rule of law.”28 Carothers states that the current “rule-of-law
orthodoxy” that focuses on nationally applicable formal laws and procedures, usually not
understood by the wider public, could not effectively create efficient access to justice for the people,
especially the poor.29 Golub writes that this top-down approach needs to be replaced by what he
and other scholars dub the “bottom-up approach” to create better access to justice and empower
the poor.30 Access to justice and legal empowerment31 of the poor have become the core standards
for measuring the newly emerging bottom-up approaches to legal services, especially after the
common barriers to justice have started to be identified.32 These barriers are geographical distance,
financial obstacles, language, cultural norms, delays, and the complexity of laws and procedures.33
The establishment and functioning of community courts will be discussed below in light of their
contribution to tackling the above-mentioned barriers to justice.

Distance
The dearth of legal professionals both in and outside the judiciary has become a serious impediment
to the Ministry of Justice’s desire to expand its outreach by extending its services to remote towns
 Chapter 6
and villages in Eritrea. Today, there are only 36 regional courts in Eritrea. Previously there was only
one High Court, in the capital Asmara; however, after years of efforts, the Ministry of Justice
established four new High Courts – one in Anseba Region, two in Debub Region and one in Gash
Barka Region.34 Prior to the establishment of community courts, litigants had to travel long
distances, often for two or three days, to reach the nearest sub-regional or regional court.35

During the first round of elections, 683 community courts were opened, covering the entire nation.36
The first three to four years of community court practice have shown that, in some regions, the
number of community courts was excessive or some communities continued to resort to more
indigenous forms of dispute settlement, such as in the case of the Afar tribe of the southern Red Sea
region. Hence, the number of community courts has been drastically reduced to 368 as of 15 April
2010, still a sizable number compared with that of regional and high courts in Eritrea. This has
allowed rural people to have easier access to state justice by approaching the community courts
near them for the settlement of “daily life” disputes.

Financial barriers
Linked to the issue of distance is the financial difficulty that the poor face in bringing their cases to
court, specifically the costs of travel to the courts and lodging. There would be substantial savings in
litigation-related expenses for the poor if they were allowed to litigate in courts near their homes,
without having to pay for an attorney and by making simple applications.37 Statistics show the
success of community courts in amicable dispute settlement and this has in turn greatly reduced
the expenses that the litigants would otherwise incur if they were to make appeals to regional courts
and high courts.

Language
Language is the third barrier in securing access to justice. Eritrea is a nation of nearly five million
people divided into nine major ethnic groups,38 each speaking its own language.39 Although the
judicial service is crucial to the daily lives of a given nation’s people, appointing a judge to serve in a
community who is unfamiliar with its traditions, language or way of life is a difficult barrier to his or
her efficiency. Judges and prosecutors appointed to work in regional and high courts in Eritrea very
often meet parties who have a different tradition and language.40

Since community court judges are elected from the community in which they live and work, and
whose language they speak, this indubitably reduces the estrangement often felt between courts
and litigants in Eritrea. The proximity between community court judges and litigants is one of the
factors contributing to the high number of quick and peaceful dispute settlements in these courts.

Complexity of laws and procedures

Community courts were required to follow the most basic procedures contained in the TCPCE and
TCRPCE.41 The wholesale application of the procedures contained in these codes to the community 123
court litigations would have created proceedings not easily understood by the common citizen. As
noted throughout this chapter, the emphasis of community court procedures is to immediately
resort to out-of-court settlement. The fear of losing a case due to lack of knowledge of the
substantive and procedural laws is greatly reduced in community courts, which encourage such
settlements as part of their way of operating.

Cultural norms
Barriers to justice based on cultural norms include the tradition common to some societies where
taking a case to the court or seeking remedies from courts is considered dishonorable, an
embarrassment to community elders, or a sign that the community is unable to handle its
problems.42 In remote Eritrean villages, there is still the tendency — arising from the belief that
community courts are like the other courts in all aspects — to resolve disputes, including murder
cases, by the village elders. However, people have increasingly been encouraged to approach
community courts because in the majority of cases people who are knowledgeable of customary
 laws are elected into the community courts, hence the high probability that cases that go to the
community courts will be settled under customary practices.

3.3.4 Achieving out-of-court settlements

As previously noted, community courts place great emphasis on out-of-court dispute settlements.
Table 3 shows that from January 2004 to mid-2009, a total of 117,586 cases were brought to the
community courts, out of which approximately 57 percent were settled by a compromise between
the parties and 31 percent decided by judgment of the community courts, with 11 percent pending.

Table 3. Preliminary report of all cases (civil and criminal) brought to community courts from
2004 to mid-2009.
Year Total no. of Decided (%) Settled without trial Pending by the end
cases total (%) of the year (%)43
2004-2006 60 333 20,246 (33.5) 37,326 (61.9) 2,761 (4.6)
2007 23 845 6,787 (28.46) 12,316 (51.65) 4,742 (19.89)
2008 22 673 7,078 (31.22) 11,972 (52.80) 3,623 (15.98)
Mid-2009 10 735 2,611 (24.32) 5,845 (54.45) 2,279 (21.23)
Total 117 586 36,722 (31.22) 67,459 (57.36) 13,405 (11.40)
Sources: E A Elobaid and S W Andemariam, Evaluation Report: UNDP Eritrea, Capacity Building in the Justice Sector, 41;
Community Courts Chief Coordination Office of the Ministry of Justice.

A key element in the high percentage of cases being resolved out of court by community courts is
that the community court judges, being part of the community of the litigants, know the parties well
and are well known to them. There is a higher probability that relatives and community elders are
involved and also that the litigants live in the same village or district. Hence, there are more chances
of personal interaction.

An interesting question arising from the high number of disputes settled out of court by community
courts is whether the plaintiffs or complainants, especially women, are being excessively pressured not
to pursue their claims for judgments under national laws. Or in the extreme of cases, could some
community courts be putting too much emphasis on out-of-court settlement due to the fear of a reversal
of their judgments by the higher courts which are more knowledgeable of national laws? A useful
approach to respond to these and related questions would be that community court judges be further
trained in courtroom procedure,44 including voluntary reactions of litigants to out-of-court settlements.
A comprehensive statistical report on the quality of such settlements could then be conducted.

Non-community courts also frequently push for a compromise between the litigants and thus a
124 withdrawal of the dispute.45 Community court judges however, are expected to serve the litigants and
they see themselves as facilitators of a compromise between the litigants. The first action that
community courts take is to guide the parties towards a compromise. In a system like the Eritrean
community courts however, the mediators (the community court judges in this case) can also refer to
national law to pass executable judgments, which may convince both parties to resort to compromise.
Thus, the community court system arguably strengthens the state legal system by allowing speedy
case resolution through mediation and by simultaneously extending the jurisdiction of national law,
which applies when parties fail to mediate.

4. Further strengthening of community courts

Seven years of experience of community courts show that the community court system tends to
ensure access of the wider population to basic judicial service and peaceful settlement of
disputes. An April 2007 evaluation of the community courts recommended further support to
 Chapter 6
and strengthening of the community courts.46 The plan to strengthen community courts required
financial assistance. The United Nations Development Programme (UNDP) had assisted the
community court plan as part of its Capacity Building in the Justice Sector project. On 2
September 2009, the European Commission and the Government of Eritrea signed a Country
Strategy Paper and National Indicative Programme for 2009-2013, whereby the former agreed to
provide the latter with a financial assistance of €122 million.47 Part of the amount, €9.7 million,
will be earmarked for strengthening the community courts. The following is an analysis of some
of the activities in progress to strengthen community courts and other steps that need to be
taken to achieve this.

4.1 Expanding jurisdiction of community courts

During a national meeting of the Ministry of Justice and its stakeholders in May 2007, a review of
the 2004-2006 activities of the community courts was presented and discussed. Among the
various recommendations was that, given the achievements of the community courts, the
jurisdiction of community courts should be expanded to include more cases. If community court
judges can be further trained on national laws, there is a general agreement that adding more
cases to their jurisdiction can serve the greater goals of access to justice and peaceful settlement
of disputes.

An overall plan has been in progress at the Ministry of Justice to review the jurisdiction of the three
levels of courts with original jurisdiction — community courts, regional courts and high courts. A
pyramidal structuring of jurisdiction whereby the majority of cases would begin at the lower level
courts and the few, complex cases would be brought to higher level courts can relieve congestion of
cases in the higher courts, allowing judges more time to study cases and carry out research in order
to deliver refined judgments. The standard that must apply for adding more cases to the original
jurisdiction of community courts is to select cases related to the day-to-day lives of communities
and those that are socially relevant.

Draft legislation on the adjustment of jurisdiction of Eritrean courts is now completed. If the
legislation passes, the community courts’ jurisdiction will be expanded to comprise a number of civil
causes including: family disputes, abuse of ownership leading to nuisance, right of way, publication
of succession rights, repair of a wall or a building, lost objects or stray animals, abuse of ownership,
and the use of rainwater and its flow to lands on low levels. Criminal disputes including defamation
and insult, failure to provide financial support to family members, infringement of the right to
privacy, damage to property caused by herds or flocks, and disturbance of possession of private or
public property will be under the original jurisdiction of community courts.

The current legislative proposal to add more cases to the primary jurisdiction of community courts
should be implemented under the condition that community court judges receive more training in
national law. It is also important that judges of the community courts be literate. 125

4.2 Term of office and literacy

A number of reviews of the activities of community courts have indicated that the two-year term of
office of community courts can thwart the progress of the courts if the judges have to sit for election
every two years.48 This problem is further highlighted by the concern that the huge expenses
involved in training community court judges can be futile if the trained judges work for two years and
fail to be re-elected. However, the Ministry of Justice responds that the failure to be re-elected can
be an asset because regular installation of new judges leads to more people with legal training in the
localities, which can be an essential tool in disseminating knowledge of the law to families and
neighbors in the community. The draft legislation proposes to balance these two legitimate
arguments by extending the term of office of community court judges to four years.

Officers at the Community Courts Chief Coordination Office of the Ministry of Justice state that in
a few community courts, none of the judges are literate and must receive assistance by students
 in the communities for writing functions. The Ministry of Justice has started to place graduates of
a one-year, college-level law training as assistants to community courts. The trainees will assist the
community court judges not only in writing court decisions and keeping court files, but also in
helping the judges understand relevant national laws that need to be referred to in delivering
judgments. Moreover, the draft legislation on the adjustment of jurisdiction of courts provides that
at least one of the three judges in each community court must be able to read and write.

4.3 Clarity in the use of customary laws

The extent to which customary law can be used in deciding on a given issue must also be clearly
spelled out in the future. A notable uncertainty in the operations of community courts is the status
of the customary laws of Eritrea. Currently, the use of customary law as a source of law for delivering
judgments is prohibited by the national laws, specifically art 3347(1) of the TCCE. Proclamation
132/2003 does not contain an explicit provision allowing community courts to refer to local
traditions or customary laws for any purposes. However, perhaps owing to their background, in a
short time, judges of community courts have developed the tradition of referring to customary laws
in reaching a compromise between disputants. To this end, any subsequent legislation on
community courts needs to be specific on how, if, when and to what extent community courts can
refer to local traditions or customary laws in deciding on a case.

4.4 Issues for further research

The increased rate of out-of-court dispute settlements, close to 60 percent, may also be a cause of
concern. Documents at the Community Courts Chief Coordination Office of the Ministry of Justice
do not reveal if the wronged parties, especially women, under the pretext of peace-making with the
wrongdoer and respect to the community, were put under pressure not to proceed with court action.
The proposal to add more cases to the primary jurisdiction of community courts can lead to more
cases being settled without resort to national laws, something that could lead to inadequate redress
for the wronged party. Research should therefore be conducted on this issue.

Moreover, a more complete review of the achievements of community courts needs to be supported
by advanced statistical data. At present, for example, there is no data regarding the percentage of
cases appealed to regional courts against the judgments of community courts and how many of the
appealed cases were upheld, modified or reversed. The assessments of the higher courts on the
soundness of the judgments of community courts need to be collected in order to further integrate
both court systems. Furthermore, perspectives of community court users, especially in the rural
areas, need to be studied.

5. Conclusions

126 Community courts, as opposed to the previous post-independence institutions of village courts and
shmagle erqi, have recorded positive achievements in ensuring the administration of justice at the
village and district levels. The democratic means of establishing each community court through
election has brought the Eritrean communities closer to the judicial service and allowed them to
monitor the courts’ transparency. Electing women in each community court is another asset of the
community courts because it contributes to national efforts to ensure greater emancipation of
women and their involvement in the judicial process.

The mixed nature of community courts, i.e. their application of national laws in delivering judgments
while simultaneously referring to local customs and indigenous laws in settling disputes out of court,
enables them to act as a conduit between customary and national laws. Therefore, they may be used
as effective tools for preserving the nation’s rich pool of customary laws as its heritage and for
disseminating knowledge of national laws to the local arena. The high level of participation of
community members in peaceful dispute settlements led by the community courts in their vicinity
brings societies, rich and poor alike, closer to the judicial service.
 Chapter 6
Community courts have also played their role in the legal empowerment of the poor. The concept of
legal empowerment of the poor includes inter alia, encouraging them to resort to informal justice
systems by involving religious authorities, local authorities and other local procedures.49 In this
sense, community courts have involved a variety of intermediaries and conciliators in their efforts
towards out-of-court dispute settlement.

footnotes 7 This is evidenced by long lists with names and so do we all bless our descendants who
1 The Proclamation was issued in Tigrigna, and villages of the legislators involved, will come after us to renew and purify these
the predominant literary language in presented at the beginning or end of the laws in strict conformation to the manner of
Eritrea, and Arabic. The way languages are respective customary laws. See, for our laws.
instance, ibid 14-18; 113-114; 217-219, 346- 13 The Eritrean People’s Liberation Front
used for issuing legislations in Eritrea
varies. The tradition involves a mix of 347 and 399-400. (EPLF), the revolutionary front that
legislations issued in Tigrigna only, in 8 For example, the final 1943 version of the liberated Eritrea in 1991, established the
English only, in Tigrigna and Arabic, or in customary law of Loggo Chwa took two Provisional Government of Eritrea. In
Tigrigna, Arabic and English. No legislation years to amend. See Estifanos, Abraham February 1994, the EPLF renamed itself the
has thus far been issued in Arabic only. and Ghebre-Meskel, above n 6, 219. People’s Front for Democracy and Justice
There is no official language in Eritrea, 9 Hagos, above n 4, 21-279. Hagos describes in (PFDJ) as part of its transformation into
although Tigrigna and Arabic dominate detail the similarities and differences in the Eritrea’s ruling political party.
rules applicable to various legal concepts 14 This is a vague expression. In practice,
official texts and government legislations.
The Eritrean Constitution of 1997 states (personality, betrothal and marriage, divorce, however, it is interpreted to mean that the
that all Eritrean languages are equal. For property, paternity and maternity, candidate for a community court position
purposes of this article, all citations of the maintenance, successions, contracts, must have completed, or be exempted
Tigrigna-issued Proclamations 132/2003 various types of crimes and compensation) from, the compulsory national service.
as contained in 27 customary laws of Eritrea 15 Proclamation to Establish Community
and 133/2003 are the author’s own
translations. while simultaneously referring to Courts, art 9.
2 corresponding provisions in national laws, 16 Proclamation 58/1994, the Land
Literally translated, the title of the
Proclamation would be “A Proclamation particularly the Transitional Codes. For Proclamation, as also later reflected in the
Issued to Establish Community Courts”. example, the introduction of the 1943 Constitution of Eritrea 1997, declared the
Some documents of the Ministry of Justice, amendment to the customary law of Loggo principle that all land in Eritrea belongs to
for example, those from the Office of Chwa contains an acknowledgment and the State and that a person may only have
Coordination of Community Courts, cite the gratitude to The Honorable Azmatch [title] usufructuary rights on land allotted to him
Proclamation as the “Community Court Tesfay Beraki, originally from Loggo Chwa, or her by the Government of Eritrea. The
Establishment Proclamation”. For purpose who “despite being an official sent to legislation also states that the Government
of easiness, the author will refer to the Meraguz [a district where the customary law of Eritrea will allocate land for industrial and
legislation as “A Proclamation to Establish of Adkeme-Mlga’e prevails], assisted his agricultural purposes. A person to whom a
Community Courts” or “Proclamation heartiest friend, The Honorable Blatta [title] plot of land has been allotted has the right
132/2003”. Kahsay Malu [one of the legislators of the to fence and mark the borders of such land,
3 The Proclamation does not contain a customary law of Loggo Chwa], by giving his to require the cutting of branches and roots
statement of objectives or a preamble. The advice in writing and thus enabled the from an adjoining land and to protect such
author continuously referred to these two customary law of Loggo Chwa to rise high”. land.
objectives during his community court- Estifanos, Abraham and Ghebre-Meskel, 17 These are contained in arts 552, 649(2),
related experiences (mentioned in above n above n 6, 219. 650(1), 794 and 798 of the TPCE
1), including his initial work in preparing the 10 Estifanos, Abraham and Ghebre-Meskel, respectively. All of these offences, except
current draft legislation to revise the above n 6, 15-465. These conclusions can intimidation (art 552) were previously
jurisdiction of Eritrean courts. be drawn from the various procedural and under the jurisdiction of the village courts.
4 M.B. Hagos, Hgtat endaba bmentsr substantive laws of Eritrean customary laws See s 1.2.
18
127
zemenawi hggi ntsotawi me’arnet (Laws of compiled for reference and study purposes. If the regional court confirms the judgment
the Forefathers in View of Modern Law for 11 C.C. Rossini, Principles of the Customary of the community court, then the case is
Gender Equality) (2009) 284-285. Hagos Law of Eritrea (1916) 34-210. closed. If the regional court reverses the
provides a list of 27 customary laws of 12 Referenced in Estifanos, Abraham and judgment of the community court, then the
Eritrea, 23 written and four non- Ghebre-Meskel, above n 6, 112. The party that had won at the community court
documented, applied throughout the Preamble to the 1944 amendment to the level can make an appeal to the High Court.
country. customary law of Adkeme-Mlga’e, for The decision of the High Court is final for all
5 The name commonly used to refer to example, contains this paragraph: parties.
customary laws in the various Eritrean Now that the Most High God has allowed us 19 In September 1991, the then Provisional
communities, Hggi endaba, is translated to to write and publish whatever is available Government of Eritrea issued Eritrean
mean “laws (rules) of the forefathers”. [on the law of Adkeme-Mlga’e], we call upon Gazette Volume 1, which contained eight
6 Z. Estifanos, W Abraham and G Ghebre- our descendants coming after us to hone, transitional proclamations. Except for
Meskel (compilers), Codes and Bylaws of update and expand this law over the Proclamation 1/1991 (the Proclamation to
Eritrean Regions and Counties (1990) 207, foundation we have laid. It is easier to Establish Transitional Institutions for the
463. All citations from this compilation are amend an existing law than to create a new Administration of Justice in Eritrea), these
translations of the Tigrigna version in which one. First came the Old Testament and then Proclamations (Transitional Civil, Penal,
the compilation was prepared. were written the Gospels in perfect light; Civil Procedure, Criminal Procedure,
 Commercial, Maritime Codes of Eritrea and Protestant on the Supreme Court’, The New the poor” and has developed a program to
the Transitional Labour Law of Eritrea) were York Times, (New York) 10 April 2010 this end. The World Bank explains the
issued by including essential amendments <http://www.nytimes.com/2010/04/11/w program as:
to the same laws previously in force by the eekinreview/11liptak.html> at 7 January an attempt by the World Bank to grapple
Ethiopian Government. With the exception 2011. Another disadvantage is that there are with some of the theoretical and practical
the Transitional Labour Law of Eritrea, no uniformly explicit rules regulating the challenges of promoting justice sector
which was replaced by Labour lodging of electorate complaints against the reform in a number of countries in Africa and
Proclamation No. 118/2001, they have been fairness of the election process. However, East Asia. Justice for the Poor reflects an
in force up until today. Drafting of the new resorting to an election process understanding of the need for demand
Civil, Penal, Civil Procedure, Criminal traditionally familiar to each Eritrean oriented, community driven approach to
Procedure, Commercial and Maritime community has greatly ameliorated any justice and governance reform, which values
Codes of Eritrea as well as a new Evidence such grievances. the perspectives of the users, particularly
Code of Eritrea (drafted by the author of 26 Literally translated, the Tigrigna phrases the poor and marginalized as women, youth
this chapter) has been completed and their chQa Addi or dagna Addi mean, and ethnic minorities. Ibid 7-8.
official enactment is expected. respectively, “mud of a village” or “judge of a 32 The Eritrean Ministry of Justice holds that one
20 Proclamation to Establish Community village”. The origin of the phrase chQa Addi of the goals of the community courts is to
Courts, arts 5(2)-(7) and 6. is interesting because the office of the judge enhance access to justice by the poor and
21 Ibid art 8(5). is equated to mud, a substance that is their participation in legal proceedings. E.A.
22 The Ethiopian Civil Code 1960 was amended treaded equally by everyone, weak or Elobaid and S.W. Andemariam, Evaluation
by Proclamation Number 2 of 1991. strong. By this expression, the community Report: UNDP Eritrea, Capacity Building in the
23 An interesting critique of the wisdom of wants the village judge to think that he has Justice Sector Project No. 00035786 (2007)
appointing judges and the ensuing been appointed to treat everybody in the 13-14 <http://erc.undp.org/evaluationadmin/
disadvantages can be found in K. Malleson community without distinction. In fact, reports/viewreport.html;jsessionid=3E3C7E
and P.H. Russell (eds), Appointing Judges in when the village elders plead a person to be 107171C88DC7ABB29DCE5B8DF6?docid=1
An Age of Judicial Power: Critical Perspectives their village judge, they tell him (village 314> at 7 January 2011.
From Around the World (2006). judges have always been men) that they 33 Langen and Barendrecht, above n 28,
24 Recall, however, that in some countries with want him to be like the goduf (dumping 254-256.
the most advanced and powerful ground) of the village. This is a figurative 34 The High Court in Asmara has two benches
judiciaries, certain judges are elected by the expression used to ask the judge to be presiding over civil matters, one over
people. With respect to the election of U.S. patient to patiently hear and settle the commercial matters and one over criminal
state judges: wrongs of the community as one would matters, both of which sit as courts of first
Unlike federal judges, who are appointed by dump all his wastes to a dumping ground. instance and as appellate courts for cases
the president with the Senate’s approval, 27 Although by law the election of community appealed from regional courts in the central
state judges come to the bench in a variety of court judges had to be conducted every two region of Eritrea. Moreover, there is a panel of
ways. Some judges are appointed by state years, logistic and other challenges led the five judges in the Asmara High Court building
governors and, after a period of time, stand Ministry of Justice to suspend the second constituting the Court (Bench) of Final
for elections. Other judges are elected from election, due in 2005, until 2008, when the Appeal, which is the highest court of the land.
the beginning. Sometimes these elections are second round of elections were conducted. 35 The author of this article is witness to this
contested and partisan; often they are not. In 28 Commission on Legal Empowerment of the situation. When serving as judge at the
recent years states have tried to improve the Poor and UNDP, Making the Law Work for courts in the cities of Massawa and
quality of state and local judges by creating Everyone, Report Volume 1 (2008) 3; See Ghinda’e in 2001, there were litigants who
panels of qualified lawyers from which state also M. De Langen and M. Barendrecht, would come from the cities of Gele’alo and
governors choose the judges they appoint. ‘Legal Empowerment of the Poor: Af’abet after travelling for two to three days,
– Microsoft Corporation, United States Innovating Access to Justice’ in G Rizvi and some on camels.
Government, Encarta 2009. J. de Jong (eds), ‘The State of Access: 36 Ibid 13.
25 A notable disadvantage is that the election Success and Failure of Democracies to 37 It should be noted, however, that the court
process may select judges that do not fairly Create Equal Opportunities’ (2009), 262 fees payable for opening a civil case
represent the communities that have <http://papers.ssrn.com/sol3/papers.cfm continue to apply to files opened before the
128 elected them. Although, unlike the ?abstract_id=1355446> at 7 January 2011. community courts, another indication that
legislative body, community court judges 29 Ibid 260. Carothers challenges the three community courts are part of the formal
are not expected to be elected to represent types of reforms intended to create access judicial structure. Court fees are governed
fairly the various communities in which they and empower the poor: “Revising laws or by the Legal Notice No. 177 of 1952,
serve, the legitimacy and acceptability of whole codes to weed out antiquated otherwise known as Court (Fees) Rules of
these judges is undeniably bolstered if the provisions [;] … the strengthening of law- 1952, which were issued as part of the
communities that have elected them feel related institutions, usually to make them various Rules of Court enacted to further
that the three judges represent fairly the more competent, efficient, and accountable implement Proclamation No. 2 of 1942, the
composition of the community. Even in [; and] reforms aimed at the deeper goal of Administration of Justice Proclamation. In
systems where judges are appointed by the increasing government’s compliance with 1991, the Provisional Government of Eritrea
executive and confirmed by the legislature, law. A key step is achieving genuine judicial proclaimed that the Court (Fees) Rules of
the appointment of judges is carefully independence.” 1952 should continue to be in force.
undertaken to reflect the political, social, 30 B. van Rooij, ‘Bringing Justice to the Poor: 38 These are Tigrigna, Tigre, Saho, Afar, Blin,
economic, racial and religious composition Bottom-up Legal Development Kunama, Nara, Hdarb and Rashaida.
of the respective countries. See the Cooperation’ (2009), 8, SSRN 39 These are Tigrigna, Tigre, Saho, Afar, Blin,
following for an analysis of the U.S. <http://papers.ssrn.com/sol3/papers.cfm Kunama, Nara, Bdawiyet and Arabic for the
experience in appointment of U.S. Supreme ?abstract_id=1368185> at 7 January 2011. Tigrigna, Tigre, Saho, Afar, Blin, Kunama,
Court judges: A. Liptak, ‘Stevens, the Only 31 The World Bank uses the term “justice for Nara, Hdarb and Rashaida ethnic groups,
 Chapter 6
respectively. For a more detailed profile of the indicated as heard in a given year includes Strategy Paper and National Indicative
country, see <https://www.cia.gov/library/ the ones transferred from the previous year. Programme for the Period 2009-2013 (2009)
publications/the-world-factbook/geos/er. For example, the reported total of 22,673 Social Science Research Network
html> at 7 January 2011. cases brought to community courts in 2008 <http://www.deleri.ec.europa.eu/whatsne/
40 In his practice as a judge in a predominantly include the 4,742 cases identified as pending CSP-NIP 2009-2013.PDF> at 7 January 2011;
Tigre-speaking region, the author of this by the end of 2007. However, statistics do not PE/2009/8686 C (2009) 9149: Commission
article, coming from a Tigrigna background, show how many of these cases were decided Decision of 25 November 2009 on the Annual
encountered language problems in by the end of 2008. Therefore, it is not clear if Action Programme 2009 in favour of Eritrea to
communicating with Tigre-speaking some of them were still pending by the end of be financed from the 10th European
litigants. The use of interpreters often made 2008 and therefore to be indicated as Development Fund (2009) Europe Aid
the proceedings tiring and complex. transferred to 2009. <http://www.ec.europa.eu/europeaid/doc
41 Instead of stating the obvious that 44 In his joint evaluation of the 2004-2006 uments/aap/2009/aap_2009_eri_en.pdf>
community courts must follow the TCPCE functions of community courts, the author at 7 January 2011; New EU support
and TCRPCE, Proclamation 132/2003, of this article visited a number of programmes to foster poverty alleviation in
Issued to Establish Community Courts community courts and had access to their Eritrea (2009) Europe Aid
included the most fundamental elements of court records. Compared with records kept <http://www.ec.europa.eu/europeaid/doc
these procedural codes in the text of the by the other courts, community court uments/aap/2009/pr_aap_2009_eri.pdf>
legislation allowing each community court records lack depth, arguably owing to the at 7 January 2011.
judge to easily preside over the cases judges’ inadequate training in national laws 48 These reviews include comments given by

brought to his or her bench. and court procedures. Further, it is difficult judges and public prosecutors during the
42 Langen and Barendrecht, above n 28, 255. to obtain complete information of the entire presentation in April 2010 of the draft
43 Hence, to give a clear picture of the statistics, process solely from their records. legislation to amend Proclamation
cases that have not been decided by the end 45 Article 275(1) of the TCPCE states that “A 132/2003. Expansion of the term of office of
of 2007, for example, might be added to the compromise agreement may at any time be community court judges from two to four
cases decided or settled out of court in 2008, made by the parties at the hearing or out of years is also a precondition for the EU
or possibly transferred to 2009 if not court, of their own motion or upon the court assistance program mentioned at the
decided in 2008. However, in all tables attempting to reconcile them.” beginning of this article.
indicating the number of cases brought to 46 Elobaid and Andemariam, above n 32, 30. 49 Langen and Barendrecht, above n 28, 264.

community courts, the total number 47 Eritrea-European Community: Country

129
 Chapter 7
CHAPTER 7
Stating the Customary:
An Innovative Approach to the Locally
7
Legitimate Recording of Customary Law in
Namibia
Janine Ubink*

Introduction
For the majority of poor people living in developing countries, customary law provides the most
accessible justice system. Their disputes are dealt with in a plethora of local dispute settlement
institutions from family elders to the more formalized chief’s courts. Ever since the colonial period,
governments have been forced to recognize the pervasive nature of customary justice systems and
their importance for the people. This has led to policy questions regarding recognition of customary
law and institutions, possibilities to supervise the application of substantive and procedural
customary norms, and attempts to modernize or prohibit certain customary practices. More
recently, agents in the field of legal development cooperation have increasingly begun to realize the
pervasiveness of customary justice systems and their importance to the poor. Combined with new
insights regarding the limited impact of reforms in the state justice sector on the majority of the
poor, this has led to a marked increase in access to justice and legal empowerment programs that
aim to build on the positive elements of customary justice systems for their benefit.

A common problem that both governments and legal development agencies encounter is the
unwritten nature of customary law. Due to its oral nature, customary law is flexible and thus offers a
high level of discretion to dispute settlers. This character trait of customary law is hailed for its ability
to respond to rapidly changing social conditions and to take into account the specific circumstances
of a case and reach a settlement acceptable to all parties. Notwithstanding these positive aspects,
high levels of flexibility may also result in uncertainty and create a susceptibility to elite capture.
Since the colonial period, a number of governments – often supported by national or international
researchers – have attempted to put parts of customary law into writing with a dual aim: to end the
uncertainty and discretion caused by its flexibility; and also, equally important, to come to grips with
the content and nature of customary law for their own understanding. Such moves have drawn
severe criticism from development theorists stressing the dangers of codification.1

This chapter starts with a discussion of the different historical mechanisms that have been 131
developed for recording customary law: codifications, restatements and case law systems. It will
analyze and compare their goals and rationales, their methodological requirements, and their
possible advantages and shortcomings. Furthermore, the chapter will provide insight into the real
effects on the functioning of customary law in countries or areas where such mechanisms have
been introduced. It will show that each of these mechanisms has its own dynamics and
opportunities, as well as serious drawbacks. The most important weaknesses of the recording
attempts are the loss of adaptive capacity as well as the resulting gap between the recorded version
and the living customary law.

* Janine Ubink is a Senior Lecturer at the Van Vollenhoven Institute, Leiden Law School, the Netherlands. Her areas of
specialization include customary law, traditional leadership, land tenure, legal anthropology and legal empowerment.
She can be reached at [email protected].
 Recently, an innovative approach to recording customary law can be witnessed in certain areas
through self-recording by customary groups or their traditional leaders, which has, for instance,
been taken in Namibia.2 To generate new knowledge on the advantages and obstacles of self-
recording substantive customary law, this chapter will explore the remarkable activities
undertaken from the beginning of the 1990s by the Owambo Traditional Authorities in northern
Namibia to arrive at a self-statement3 of the most important substantive and procedural
customary norms, while simultaneously adapting some norms to conform to Namibia’s
Constitution. How and why did this process take place? Who were the change agents? And which
norms ended up on paper? The chapter then presents the impact of this process in one of the
Owambo Traditional Authorities, the Uukwambi Traditional Authority. It studies to what extent the
new laws are actively propagated, are known by traditional leaders and common villagers, and are
seen as customary law. Furthermore, it analyzes how and to what extent the recording of the most
important customary norms has had an impact on the functioning of the customary legal system
in the Uukwambi Traditional Authority: Have the new norms effectuated behavioral change, and are
they enforced by traditional authorities?

Through research data collected in 2009 and 2010 – more than 15 years after the initiation of the
process – it becomes clear that the self-statement of customary law prompted certain positive
changes in Uukwambi’s customary justice system. First, it had a profound impact on the functioning
of customary law. Although the self-statement was not comprehensive and only covered the main
rules of customary law, it did increase the certainty of the justice system by reducing the level of
discretion of traditional courts, especially with regard to sentencing. This aspect was regarded
positively by common villagers as well as by traditional leaders. Second, the research data show that
the adaptations made were well known and highly effective. The new norm prohibiting “land
grabbing” or “widow dispossession”4 was well-known and implemented. The latter is especially
striking when compared with statutory interventions in other African countries to outlaw land
grabbing, which have been only marginally successful.

The arguments presented in this chapter draw on field research conducted in the Uukwambi
Traditional Authority between September 2009 and February 2010. Data were collected principally
through qualitative data collection methods, comprising semi-structured interviews – with
women, women leaders, traditional leaders, farmers, governmental authorities, academics, staff of
non-governmental organizations (NGOs) – focus group discussions with women and NGO staff,
and participant observation of traditional court meetings. In addition, structured interviews on the
basis of a survey were conducted in 216 rural households to explore issues associated with legal
awareness, perceptions of customary proceedings and the role of traditional leaders in dispute
settlement.

132 1. Historical attempts to record substantive customary law

Over the years, several mechanisms have been developed that allow for a recording of customary
law, with the aim of enhancing clarity and certainty, and reducing the scope of discretion for judges,
dispute settlers and administrators. This also reduces the susceptibility to elite co-optation. These
mechanisms include codifications, restatements and the gradual recording of customary law
through the development of case law. They show various methods and differ in comprehensiveness
of their recording efforts. This section will discuss each of these methods’ merits and drawbacks, in
terms of process and methodology as well as impact on customary justice systems and its users. To
this end, it will discuss both theoretical literature and, where available, case studies of the
development and use of the recordings in specific countries and areas.

1.1 Codification
A code is a most comprehensive and exhaustive binding statement of the applicable law on a
particular topic for a particular jurisdiction. Some claim that codification is “the most obvious
 Chapter 7
solution to the problems of ascertainment … of customary laws”,5 as it “substitutes order, precision,
authority and uniformity for what had previously been confusion, imprecision, doubtful authority
and diversity”.6

The main objective of codification is to stem uncertainty,7 which has two sources. First,
customary laws, being unwritten, depend for their survival and preservation on human memory,
which is often unreliable. When adding to this unreliability, the deliberate distortions of the laws
by interested litigants or by traditional elites, the result is uncertainty.8 Second, the uncertainty
of customary law is created by the discretion of judges in cases where customary law is
contested and in their use of the repugnancy doctrine9 and other general tests of validity.10 The
uncertainty within customary law is exacerbated by power, wealth and other asymmetries
between the parties.

Other aims of codification include unification, simplification and modernization.11 Although the
process suggests nothing more than the reduction of the whole corpus juris to the form of enacted
law, considerable reforms may be affected as part of this process.12 When customary rules are
discriminatory or biased, for instance, against women, immigrants or youth, codifying them can
consolidate or bring a level of authority that is deemed undesirable, which makes a natural evolution
towards equality less likely. Thus, in the codification of customary law, modification “would obviously
be required where the question arose of reconciling conflicting rules of customary law, of attempting
to amalgamate customary and civil law or of abolishing what might be felt to be undesirable or
outdated rules”.13 In effect, the process of codification would suggest an evolution from the original
customary law to a new system, which, while founded in tradition, is adapted to the needs of a
modern state.14 Bearing this in mind, the development of a codification involves painstaking
research, sifting and recording. It involves legal drafting and definite and positive overruling of
contrary customary laws.15

Many colonial administrators were preoccupied with the codification of native customs, in the hope
that it would permit a better understanding of native societies and a better means of controlling
them.16 This was not true for every country, as Shadle shows for Kenya, where colonial
administrators themselves resisted codification of customary law because they saw it as a threat to
administrative power. They believed that:

[a] crystallized, unalterable customary law would allow them little room to adjust the
law in order to control local African courts and, by extension, African societies. In the
same way, a non-codified customary law meant that only those who ‘knew the
African’, that is, district officers, could preside over intra-African legal matters. African
courts and African life could thus be kept isolated from the overly-technical and
arcane judiciary, thought to be illogical to the African minds and thus encourage
flouting of the law.17 133

Codifications have met with various objections. The first criticism points to the large variation
among the different customary laws within the same country and that it would be almost
impossible to record them all and highly difficult to harmonize and codify them into a single
customary law that all communities would have to follow. This process would entail the exclusion
of many observed customary laws. As a result, the codification is faced with grave problems of
credibility and acceptability, and might be completely ignored by many people as not reflecting
their rules of customary law.18 In fact, this is exactly what occurred with Tanzania’s experiment with
codification of customary laws in the 1960s. This was generally the adoption of one set of
customary laws to the exclusion of others. The excluded groups by and large continued to quietly
apply their own customary laws in their dealings with each other.19 According to Bennett and
Vermeulen, however, almost any codification will suffer from problems of credibility and
acceptability, “because [customary law] is a system of law evolved by the people themselves, [and]
any code will quite possibly seem to be an imposition by outsiders”.20
 The second objection is that customary law is in a fluid state, and thus constantly changing;
codifying it, it is argued, would mean freezing it and hindering its future developments. Although a
code can be kept up to date by amendment, experience shows that changes that have to be
introduced by legislative processes often face long delays.21 Osinbajo warns, however, that a code
need not be seen as a complete statement of a particular set of laws, incapable of being added to
without the intervention of the legislature. A code may contain inclusionary provisions that may
allow for greater flexibility in its use.22

A third criticism of codifications is that there is no way of ensuring that the local experts of customary
law are reliable. Many authors question the reliability of expert statements about customary law on
the grounds that when asked to engage in such an exercise, people are invariably led to invent rules
or to make inaccurate statements or subjective interpretations.23 The difficulty of the process is
enhanced by the challenge to find able drafters who will carry out their drafting duties without errors
and omissions in an unbiased, professional manner, with an open and positive attitude to customary
law.24 Narebo sees a serious danger of those assigned with the task of codification coloring their
findings with their preconceived ideas about a particular customary law.25

A number of authors discuss the timing of codification and the issue whether the formulation of law is
appropriate in a rapidly developing society.26 Codification of customary law at such a time may be “too
early”27 or “premature”28 and “may easily result in extensive discrepancies between law and practice,
and in the creation of the undesirable situation of the law becoming obsolescent in comparison with the
evolution of legal concepts among a society subject to social and economic change”.29 Perhaps it would
be “wiser to let it evolve its own way, adapting spontaneously to its new socio-economic context, and
coming eventually to maturity in the new society it is called upon to reflect and serve”.30 Some authors
are slightly ambivalent, however, such as Pogucki, who questions the appropriateness of codification in
a time of rapid change, but at the same time contends that “whenever there is a progress in social and
economic conditions legislation becomes imperative”.31 The fact that the ‘not now’ argument has been
made by scholars and administrators ever since independence led Azinge to conclude that the phase
of maturity might never come: “it is wrong to create the impression that codification of customary law
may become a practical reality at a later date”.32

1.2 Restatement
Restatement of customary laws refers to the exercise of making an authoritative but non-binding re-
presentation of customary law on a particular topic by bringing together and rearranging previous
expressions of customary law in a more logical and comprehensive way.33 Some well-known
restatements were undertaken by the Restatement of African Law project initiated by the London
School of Oriental and African Studies in 1959. The restatements involved bodies of experts on the
customary law in the relevant territory, which usually included African court judges, chiefs, elders,
young educated community members, and, where possible, women.34 Detailed restatements were
134 widely circulated and discussed with all those concerned with the administration of law, such as African
court judges who did not sit on the expert panel, local administrators, District Councilors, etc.

According to Allott and Cotran, two of the researchers involved in the London restatement project,
this work was explicitly undertaken with the purpose to “put into the hands of users a more precise
and comprehensive statement of the applicable law, upon which they can rely in their execution of
their daily tasks”.35 It was their contention that administrators of customary law needed to know
precisely what it was. Further, those wishing to change it, especially for its unification, harmonization
or integration, needed to know the particular customary law that they wanted changed.36 Thus, a
restatement was regarded as a highly desirable means to bring certainty and make the customary
law generally known, not so much to the ‘subjects’ of the law – who, according to Bennett and
Vermeulen,37 were relatively cognizant of their customary laws - but rather, to users such as judges
and legislators. This should prevent judges from disregarding customary law in cases where they
would otherwise have difficulty ascertaining its content. It should also diminish the discretion of
judges through the use of the repugnancy clause and other general tests of validity. Furthermore, it
 Chapter 7
should protect the population against often-unscrupulous individual interpretations by traditional
authorities or other locally powerful people.

Restatements have faced various objections, largely comparable to the critique on codifications.38
First, the many variations of customary law within one ethnic group means that it could take a
lifetime to complete the recording of the law of one group; not to mention that of all ethnic groups in
a country. There is also the risk of freezing an evolving system with a restatement, which could
create “a road block to modernity”.39 In Uganda, Cotran40 notes, it was thought unwise to record the
customary law since that would “tend to freeze it and hinder its eventual disappearance.” The
question of how to select reliable informants is as relevant for restatement as for codification.
Shadle41 shows that in colonial Kenya information provided by elders on customary law in expert
panels led to the institution of rules that permanently favored elders to the disadvantage of women
and junior men. He furthermore shows that what African court elders who served as law panel
members represented as customary law in the panel minutes differed from the customary law they
used in actual court cases. In these courts, presiding elders remained committed to a fluid and
situational customary law, rather than the more fixed rules in the law panels.42

In their 1971 paper, Allott and Cotran attempt to refute the above criticisms.43 First, they argue that
in customary law the variations are more apparent than real, and that there are more similarities
than dissimilarities. This response does not, however, deal with the cases where there are variations
or contestations of customary law. With regard to the risk of freezing, they state that this would only
materialize if the restatement were used as a code instead of as a guide with provisions made for its
regular revision. According to Allot:

[j]udges are shown as constantly turning to the Restatement as a guide to the

applicable law: at the same time judges show themselves ready to accept
supplementary expert evidence which may displace the Restatement account or to
rule that social circumstances have changed since the Restatements were originally
complemented, or that there are overreaching policy reasons why the Restatement
rule should not be applied in a particular case.44

This response ignores the fact that the whole reason for the project is the difficulty judges have in
knowing the local customary rule. As a consequence of this difficulty, they might not be easily
persuaded that customary law has changed. The restatements might thus not be a code de jure, but
might in time become one de facto, which Shadle45 states has occurred with the restatement of civil
customary laws in Kenya. In their response, Allott and Cotran furthermore gloss over the more
general fact that where a rule of customary law is written down in a restatement, codification or
statute, its contents assume a different character. In disputes located outside state courts, this
norm is negotiable and is worked out on a case-by-case basis through a process of bargaining and
dispute settlement. Once written down, it becomes rigid and precise, and its application in state 135
courts will be relatively strict.46 Allott’s and Cotran’s response to the issue of reliable informants is
this: the members of the panel are carefully selected; the restatements are subjected to the
independent eyes of persons who do not sit on the panel; the panel meetings are not question-and-
answer sessions, but detailed examinations of hypothetical or real trouble cases; and the researcher
who leads the restatement process is highly knowledgeable of the subject matter and can therefore
not be easily manipulated. According to Verhelst,47 however, even the lawyers on the restatement
project agree with anthropologists that a more anthropological approach of studying customary law
would be sound, but consider this technically impossible.

Other authors have criticized the restatements for different reasons, for instance, since the use of
language, legal categories and terminology are alien to customary law – most restatements were
made in English – the nature of customary law is inevitably altered.48 Furthermore, anthropologists
claim that it is both a mistaken and unrealistic objective to try and mold customary law into a set of
legal rules, since they have little meaning outside of the social context that explains and supports
 them.49 According to Verhelst, these differing views can be explained by the goals of the authors of
the restatements. Their concern is neither the preservation of customary law nor the instant
acceptance of the restatements by the population. As stressed above, their emphasis is on the
effective administration of law.50 If the anthropologists’ directions were to be followed, the results
would be too slow to come and likely difficult for administrators to use.

1.3 The development of case law

In a common law system, the doctrine of stare decisis will lead to a case-by-case recording of
customary rules, as applied in specific court cases. In the absence of systematic records of
customary law in the form of codes or restatements, judges will heavily depend on earlier decisions
as a source of customary law. But even when systematic records do exist, case law will be relied on
for interpretations and specifications of written customary laws.

Such development of a case-by-case record of customary rules has met with various criticisms. The
first again deals with the danger of crystallization of customary law. When rules of customary law
established by previous decision(s) are the basis of judicial notice in subsequent decisions, this
might lead in some cases to “a sacrifice of future development on the altar of history”.51 Furthermore,
a reliance on case law may result in the perpetuation of errors of interpretation.52 This criticism
seems to ignore the fact that even where a custom has been judicially recognized, it is open to a
party to show that it is no longer supported by established usage. Courts will allow evidence in
support of changes in judicially noticed custom. However, although this is officially so, in reality such
a change is hard to prove, and most judges prefer to simply rely on earlier decisions. This is nicely
illustrated by a remark from Ghanaian Judge Baffoe Bonny who, during a conversation about the
gap between local and judicial customary law, opined that “what is in the courts is the customary
law. Local practice differs from customary law because of ignorance and opportunity”.53 As a result,
even when he knows local practice differs from judicial customary law, he considers himself bound
to follow case law. A final criticism is that the reporting and publishing of decided cases, an obvious
condition for a well-functioning case law system, is generally inadequate in many African countries.
This makes it almost impossible for judges to know of and follow earlier decisions. Objections
against the development of case law are in fact objections against the application of customary law
by state courts in general, since all modern state legal systems have some degree of recording and
reliance on case law. Many courts will in principal also follow earlier decisions of certain higher
courts as well as their own earlier decisions, not only in common law systems, but also in civil law
systems.

Claassens, describing legal developments in South Africa, provides an example of the power of
‘official’ written versions of customary law.54 She explains that the South African Constitution is
unusual in that it focuses explicitly on the need for change. It sets out to deal with the past and to
address inequality. Constitutional Court judgments have rejected the ‘official’ codified version of
136 customary law in favor of ‘living law’ interpretations based on the consideration of actual practice in
changing contexts.55 This can be explained by the legacy of colonial codifications that privileged
chiefly versions of custom and silenced all contrary versions, thereby sanctioning an authoritarian
version of custom as law. However, the potential benefits of the ‘living law’ interpretation remain
vulnerable to deeply ingrained formalist assumptions about the operations of law.56 Practice shows
that it is difficult for ordinary people to challenge “chiefly versions” of customary law in state courts
that are precedent-driven and rely on past judgments that upheld colonial and apartheid versions of
customary law. In particular, “in the context of widespread regional variety and competing versions
within particular localities”,57 establishing the content of ‘living customary law’ requires research that
is often time-consuming and expensive. In spite of the well-known and widely acknowledged failures
of the official versions of customary law, mere availability of information on these versions has had
the effect of creating a de facto presumption in its favor.

As an example, Claassens describes a recent case challenging a woman’s appointment as

traditional leader.
 Chapter 7
Phillia Shilubana is the daughter of a Tsonga traditional leader. When her father died in
1968, her uncle was appointed to act in his place because she had no brothers. At that
time, both Phillia and the Nwamtiwa clan accepted the appointment of a male chief as
inevitable. However, by 2001 the political and constitutional environment had
changed and a consensus emerged that Phillia was the most appropriate person to
succeed her uncle when he died. This decision was extensively discussed in various
forums and ultimately recommended by the royal family, the tribal council and a large
consultative community meeting.58

In 2002, when Phillia Shilubana was officially installed as traditional leader, her uncle’s son decided
to challenge her appointment on the basis that it was in conflict with customary law. The Pretoria
High Court ruled in his favor, and the decision was upheld by the Supreme Court of Appeal. This
latter Court held that “according to customary law, succession follows particular customary rules
and allows no leeway for choice whether by the royal family, tribal council or community.” The
discussions at the Pretoria High Court and the Supreme Court of Appeal illustrate the danger of
ossified rule-based versions of customary law – whether laid down in codes, textbooks, or case law
– closing down processes of locally negotiated transformative change.59 This was recognized by the
Constitutional Court, which in a further appeal passed judgment in favor of Philia Shilubana.

[C]ustomary law is by its nature a constantly evolving system. … the content of

customary law must be determined with reference to both the history and the usage
of the community concerned. … To sum up: where there is a dispute over the legal
position under customary law, a court must consider both the traditions and the
present practice of the community. If development happens within the community,
the court must strive to recognize and give effect to that development, to the extent
consistent with adequately upholding the protection of rights.60

2. Self-recording customary law in northern Namibia

The above shows that the three main historical mechanisms for recording customary law –
codification, restatements and the development of a system of case law – all have similar
drawbacks. Most importantly, the deliberate as well as the undeliberate alterations to customary law
created in the process of recording, combined with the limited level of success in gaining local
legitimacy for these new recorded versions, resulted in a large gap between the recorded version
and the locally observed versions of ‘living’ customary law.

In May 1993, leaders of six Owambo61 traditional communities assembled for a Customary Law
Workshop.62 According to the minutes of the meeting, the purpose was:
137
[t]o start a process of consultation between the Owambo Traditional Authorities in
order to harmonize certain aspects of their traditional law, to adjust it to the new social
and legal environment and to improve the legal status of women in line with the
requirements of the Constitution of Namibia.63

Each of the Owambo Traditional Authorities was to include the agreed-upon norms in a written
document containing its own recorded customary law.64 According to Hinz,65 the self-statements
address two kinds of groups. The first consists of all outsiders who have to deal with the customary
law. The second group consists of the community members “who have to be reminded that a given
part of customary law had to be changed to meet constitutional requirements or standardized in
view of needs that flow from the growing interaction of members of different communities”. Even
within traditional authorities, local customary practices were far from uniform. Limited knowledge
among village leaders of the norms as defined by the highest level of traditional leadership,
discretionary powers of traditional leaders to include circumstantial issues such as the behavior of
 the parties in the traditional court, and abuse of power by traditional leaders, all led to high variation
in customary practices. Due to their written character, self-statements have the potential to bring
change in this regard, to reduce the flexibility and negotiability of norms and thereby to enhance the
certainty and equity of traditional dispute settlement. They also provide a simple way for villagers to
gain knowledge about customary laws.

This chapter poses the question to what extent the ‘homegrown’ recording process in northern
Namibia runs into similar difficulties as the other devices for recording, or whether it can be seen as
a recipe for creating a genuinely legitimate recording of customary law. This section will analyze the
process, the timing and the main change agents behind this transformation of customary law. It will
give special consideration to the changes advocated with regard to gender equality. In addition, it will
discuss the resulting written laws in one of the Owambo Traditional Authorities, i.e. the Uukwambi
Traditional Authority. Section 3 will study what the impact has been of the recording of the main
customary laws on the functioning of the Uukwambi justice system. Section 4 will focus on the
attempt to change the position of widows in inheritance cases, and will study the awareness and
implementation of the new norms. Section 5 will conclude with an evaluation of the success of
Uukwambi’s self-statements. Furthermore, it will analyze whether this process can be replicated
elsewhere, or whether external factors such as political momentum created a unique point in time
with preconditions that cannot easily be manufactured elsewhere.

2.1 Process, timing and change agents

The efforts to harmonize Owambo customary laws built on earlier self-statements by the
participating traditional authorities, such as Ondonga (1989), Uukwaludhi (1984), Ongandjera
(1982).66 In the other Owambo Traditional Authorities, a first official draft of the laws was made in
the process leading up to the harmonization workshop.67 Interviews in the Uukwambi Traditional
Authority revealed, however, that lists of rules and principles had been in the possession of senior
traditional leaders for a number of decades, but these were not unified, nor widely known or
distributed.68

The timing of the unification is intricately connected to events at the national political level. With
independence finally arriving in 1990, the 1990s were characterized by a strong identification with
the new Namibia and with a sense of urgency to make the concomitant changes to transform the
remnants of the divisive apartheid government into a more inclusive, modern form of government.
The Owambo Traditional Authorities were struggling to remain relevant in the new constellation of
independent Namibia. In the run-up to independence, neither the report of the United Nations
Institute for Namibia,69 which was crafted as a blueprint for an independent Namibia, nor the
Namibian Constitution70 mentioned traditional authorities.71 This can be interpreted as an indication
that “the political minds behind the Constitution did not envisage much of a role for traditional
authorities”.72 One year after the adoption of the first Constitution, President Sam Nujoma
138 established a “Commission of Inquiry into Matters Relating to Chiefs, Headmen and other Traditional
or Tribal Leaders and Authorities”. This “Kozonguizi Commission” had the task, inter alia, of inquiring
into the degree of acceptance of traditional leaders by the people.73 The Commission concluded
that, despite regional differences and individual dissatisfaction, traditional leadership was a
necessary and viable institution, and recommended its retention, “within the context of the
provisions of the Constitution of the Republic of Namibia 1990 and having regard to the integrity and
oneness of the Namibian Nation as a priority”.74 This ushered in a new dawn for traditional leaders,
who were eagerly seeking to redeem the popular support they had lost due to their close alignment
with the South African colonial regime.75

These push and pull forces combined to form a strong internal drive for the recording,
harmonization and transformation of customary norms by traditional authorities, in order to adjust
them to the legal and social environment of the new Namibia. In addition, government plans – albeit
still vague – to engage in a codification of customary law,76 brought a certain amount of urgency to
the whole undertaking, in a bid to stave off undue governmental interference.
 Chapter 7
2.2 Gender issues
One of the domains in which change was advocated was gender relations. Women had played a
prominent role in the period before independence, both as freedom fighters and in the
functioning of the rural localities when men were away fighting in the war of independence or
working on labor contracts at white-owned farms and companies. The notion of ‘women’s rights’
entered Namibian politics when women freedom fighters not only expressed their opposition to
colonial occupation, but also to contrived custom and tradition.77 The collaboration of traditional
leaders in indirect rule of the apartheid government was a determining factor in this articulation.
The Constitution of the Republic of Namibia 1990, reflected the demand for gender parity in
guaranteeing equality and freedom from discrimination on a number of grounds including sex
(section 10(2)).78

The aims of the customary law workshop specifically included the improvement of the legal status
of women in line with the requirements of the Constitution. The minutes of the workshop show that
both Advocate F J Kozonguizi, the Chairman of the Kozonguizi Commission referred to above and
the then Ombudsman of Namibia, and Ms Nashilongo Shivute, a representative of the President’s
Office in the Department of Women’s Affairs, were present during the workshop and explicitly
brought up the issue of gender equality:

In the past, the conditions of women were not as good as they should be, but today
the government is trying [to] uplift the women’s situation in Namibia.79

We, the women, have come to hear and see what is being done, so that if there is
anything that may suppress the women [it] be done away with. Traditional laws and
general laws should be equalized. Traditional laws must be adjusted properly. We do
not say should be abolished. Widows must also be protected.80

Ms Shivute’s reference to widows highlights the customary inheritance norm that when a man
dies, his estate is inherited by his matrilineal family. This leaves the widow dependent on her
husband’s family, unless she chooses to return to her own matrilineal family. Despite a customary
obligation of the husband’s family to support needy widows and children, this often resulted in the
widow and her children being chased out of the house. A related customary norm in Owambo is
that when women remained on the land they had occupied with their husbands, they were
required to make a payment to their traditional leaders for the land in question. At the workshop,
the traditional leaders present unanimously decided that widows should not be chased from their
lands or out of their homes and that they should not be asked to pay again for the land.81
President Sam Nujomo was another high-profile proponent of such a change. Shortly after
independence, he made a public appeal that widow dispossession should be stopped, and not
long after that the National Assembly unanimously passed a motion demanding fair treatment for
widows.82 During the workshop, Adv. Kozonguizi conveyed the President’s strong feelings 139
regarding the topic to the traditional leaders assembled.83

This normative change reflects a widely felt need in society to enhance the position of widows, both
at local and national level. By the early 1970s, Tötemeyer already found that a large proportion of
interviewees in Owambo stated that the widow/widower and children of the deceased should inherit
all (60.9 percent of interviewees) or part (21.2 percent of interviewees) of the estate.84 Research
carried out in 1992/1993 in Uukwambi showed that when asked the attitudinal question whether
they agreed or disagreed with the statement, “The husband’s family should inherit all the property
when the husband dies”, 95.7 percent of respondents disagreed.85 The statement, “Women should
be allowed to inherit land without having to pay” yielded 96.7 percent positive responses. This
research thus clearly showed that the respondents believed women should inherit their husband’s
land, rather than his family, and that this land should not be charged for through the headman.86
Consequently, in 1993, more than 100 women demonstrated against discriminatory inheritance
laws at the highest court of Oukwanyama Traditional Authority.87
 Gordon shows the deep historical roots of widow dispossession, which has been a subject of
contention in Owambo for over a century.88 He elaborately describes earlier attempts by traditional
authorities, colonial administrators, as well as missionaries to improve the inheritance situation for
widows.89 According to Gordon, these attempts were largely unsuccessful, which leads him to
question the “much-vaunted power of ‘Traditional Authorities’ who have shown themselves to be
aware, sometimes keenly, of inheritance issues and yet their own ‘traditional laws’ appear to be
frequently ignored or side-stepped.”90 This poses the questions to what extent will the Owambo
Traditional Authorities’ latest efforts to enhance the position of widows be more effective or will the
new customary laws again be ignored?

2.3 The written laws of Uukwambi

The Customary Law Workshop was not a law-making body. As such, the meeting’s decisions were
to be recommendations for the councils of the various traditional communities, who could translate
them into law for their respective communities.91 The resulting ‘self-recording documents’ are not
comprehensive codifications. They contain reference to a number of substantive and procedural
norms that were felt to be of particular importance.

The written Laws of Uukwambi (1950-1995) consist of two sections. The first section consists of 11
pages describing the legal system of Uukwambi. It starts with a number of procedural rules, stipulating
the procedure for lawmaking, the hierarchy of traditional courts, the obligation of obedience to
traditional courts, and the right to bring witnesses. It then deals with substantive law, both of a criminal
and a civil character.92 It mentions a number of felonies – including murder, illegal abortion,
abandonment of a baby, rape, adultery, impregnation of an unmarried woman, assault and intimidation
— and their required penalty. It then turns to issues involving property and natural resources, such as
land distribution, traditional inheritance, stolen properties, cattle (transportation, slaughter, loss), and
protection of water, trees, wild animals, crops and grazing grass. The section ends with a number of
rules regarding what may be loosely termed as “moral behavior”, including the sale of alcohol, the
prosecution of witch doctors, the traditional upbringing of children, and the obligation to care for the
elderly. The second part of the document contains 13 “law articles”. The first 12 of them merely state the
penalty for certain felonies. The last law article consists of sub-sections ‘a’ to ‘r’ that repeat some of the
issues mentioned earlier in the document, such as: “a. Nobody must transport cattle without a permit”.

The unanimous decision regarding widows’ inheritance made by the traditional leaders present at
the Owambo workshop resulted in the following provision in the written Laws of Uukwambi (1950-
1995): “Traditional law give[s] provision that, if one spouse dies the living spouse shall be the owner
of the house” (section 9.2). Section 9.4 adds: “Any widow [who] feel[s] treated unfairly during the
inheritance process has the right to open up a case against those with the headmen/women or
senior headmen/women or to the women and child abuse center.”

140 The Uukwambi Traditional Authority is currently in the process of updating its written laws.
According to the Laws of Uukwambi (1950-1995) the traditional laws are reviewed every five years,
but until now they have only changed the fines to adjust to the rising price of cattle. In the current
process, they are explicitly checking whether their provisions do not contravene the Constitution.
The draft93 version of The Laws of Uukwambi Traditional Authority (1950-2008) repeats the right of
the widow94 and explicitly acknowledges that this right does not require any payment: “In the
amendment of the traditional law of 1993, it was agreed that widows will no longer be chased out of
their land and/or asked to pay for the land/field after their husbands’ death as it was before.”95

3. The impact of written laws on the Uukwambi customary justice system

Following the discussion of the process of recording in Owambo and the resulting document in the
Uukwambi Traditional Authority, this section analyzes the local impact of the recording of Uukwambi
customary law on the functioning of the Uukwambi justice system. To what extent are villagers
 Chapter 7
familiar with the existence and the content of the written laws? Do they regard the recording as
having an influence on the administration of justice, and if so, in what way? How do traditional
leaders perceive the impact of the new document? How and to what extent does it change the
relationship between people and their traditional leaders?

3.1 Knowledge of the written laws

When 162 respondents of the survey were asked whether the Uukwambi Traditional Authority had
written customary laws, only 40.7 percent responded yes; 10.5 percent responded no; and 48.8
percent did not know. When aggregated by age and by gender, it becomes clear that knowledge of
written customary law is most prevalent among people between 40 and 70 years old (Table 1) and
more among men than women (Table 2). When disaggregated by level of education, the data
displayed no substantial differences.

Table 1. Does the Uukwambi Traditional Authority have written customary laws?
Age group Age group Age group Age group Age group Age group
20-29 30-39 40-49 50-59 60-69 >70
(%) (%) (%) (%) (%) (%)
Yes 17 29.2 51.6 61.9 63.3 47.1
No 14.9 16.7 3.2 0 9.1 17.6
I don’t know 68.1 54.2 45.2 38.1 27.3 35.3
N=162

Table 2. Does the Uukwambi Traditional Authority have written customary laws?
Men Women
(%) (%)
Yes 56.7 29.3
No 7.5 13.0
I don’t know 35.8 57.6
N=162

When respondents were asked how well they were acquainted with the content of the laws of
Uukwambi (whether written or unwritten), a similar pattern emerged: age and gender accounted for
substantial variation – with men and age groups 40 to 70 scoring above average – whereas
education did not.

When discussing knowledge of customary laws, it is important to highlight that approximately two-
thirds of respondents (71.7 percent of female respondents and 62.7 percent of male respondents)
had never attended a traditional court meeting in their village. Whereas 31.6 percent of the 141
respondents had participated in court meetings, only 8.2 percent reported having attended “many
times” or “almost always”. Traditional court meetings therefore do not engage the majority of the
adult population of a village. Here also, the age groups 40 to 70, as well as men were
overrepresented.

3.2 A change for the better?

Of the 66 respondents who acknowledged the existence of written customary laws, a large majority
claimed to feel positive or very positive about them (95.5 percent). In addition, almost all of these
respondents agreed or strongly agreed that the headman or headwoman decides cases on the basis
of the written laws (98.4), that they find it easier to accept a decision when it is based on written law
(98,7 percent), and that written laws have made traditional court decisions fairer (98.4 percent).

These positive views are largely corroborated by participant observation at traditional court
sessions as well as interviews with men and women who regularly attend them. When the subject of
 the written customary laws of Uukwambi was broached with these interviewees, they almost all
agreed that the written laws are actually being used in court. They explained that after the recording,
the Uukwambi Traditional Authority gave all headmen and headwomen copies of the laws, which
members of the traditional court bring to court meetings.96 After the cases are called, the chairman
or secretary usually starts by reading the appropriate parts of the laws to the public. Later in the
proceedings, the written laws are often referred to in discussions, both by members of the court and
by attending villagers.

Not all interviewees are convinced of the importance of the recording of Uukwambi laws; a small
minority questions its impact. Some refer to the fact that not in all villages has the traditional leader told
the people about the new laws. Others doubt whether a written document can make many inroads into
the largely illiterate rural society. Yet others point out that the written source of the law might have
increased legal awareness, but has not enhanced respect for and enforcement of decisions.

Most villagers, however, say that the written laws have brought positive change, especially
through the recording of fixed fines. They state that the recording of laws has enhanced the
certainty and predictability of customary law for its subjects, has brought forward the
harmonization of decisions of different Uukwambi courts, and has increased the equality of
decision-making.

An additional effect of the recording of customary laws and the inclusion of fixed fines is found in the
significantly enhanced legal knowledge of local villagers, at least of those who attend traditional
court meetings. People are much less dependent on local information, as the rules are the same
everywhere in Uukwambi and even, at least with regard to most fines, in the other Owambo
Traditional Authorities. The combination of fixed fines and increasing legal awareness among the
people fosters the accountability of court members and limits their discretion. Consequently, the
recorded laws act as a check on corrupt practices by traditional leaders in the realm of dispute
settlement. The following statements refer to the discretion of traditional leaders in deciding on
cases and especially penalties:

Because the law is now clearly set out, and traditional leaders are guided by the same
document, there are no longer any differences between one village leader and
another. For a long time it was quite different because there was no single document
to guide them; any headman could decide how they wanted their people to behave.97

Previously, traditional leaders could determine the severity of a fine, depending on

how you behaved. When they thought someone was not respectful, they would be
fined four cows instead of two.98

142 When traditional courts fine someone for an amount higher or lower than is stated by the law,
the villagers now question the traditional leaders about it. Such cases can and are brought to the
court of the senior headman or headwoman, for him/her to rectify the fine in accordance with
the law.99

3.3 Traditional leaders’ perceptions

The supremacy of the written laws seems generally accepted by the traditional leaders. As one
headman puts it, “We cannot make a decision from thin air. We have to refer to the laws.”100 Even
those few traditional leaders that do not often refer to the written laws in their decision-making
acknowledge their general validity and applicability, and claim in interviews that they are well aware
of their contents and judge accordingly.

Most traditional leaders expressed a marked appreciation of the changes that the recorded laws
brought to the Uukwambi justice system. They state that the laws have helped them to make the
right decisions. In addition, the written laws have enhanced the legitimacy and acceptability of their
 Chapter 7
decisions by the parties and the general public. They feel that people respect the law more, now that
it cannot easily be applied discriminatorily. Two headmen explain:

The written laws have made my job easier. It is no longer me who is saying this or that;
instead it is now the law. Everyone in the gathering will support a binding legal fine. So
there will be no more revenge.102

Now that we have written laws, the decisions we make are no longer subjective; but
rather based in law. During traditional court meetings we read the law to the people
and show them: this is what the law says. Previously, when someone was fined, they
felt the headman had personally punished them. Now that people know penalties are
written in the laws, they cooperate with us much more. When we hold court meetings,
we were told to explain the law relevant to the actions they have committed, so that
each individual understands the legal reasoning behind the consequences of their
actions.103

4. Protecting the inheritance of widows

As seen above, the written laws of Uukwambi included new provisions to protect the land of women
on the death of their husbands. This section will discuss the effectiveness of these norms. To what
extent are traditional leaders and common people aware of the new norms? Are the norms enforced
by the traditional leaders? And has this led to effective behavioral change?

4.1 Legal awareness and behavioral change

In the research carried out in 1992/1993 600 female Owambo respondents were asked about
property and inheritance in a customary marriage. Of the 63 respondents from the Uukwambi
Traditional Authority, 58 percent answered that they were convinced that, on the death of their
husbands, they would not inherit anything.104 These figures are striking when compared with
data from the current study. Survey results showed that of the 162 respondents in Uukwambi,
81.4 percent were aware of the norm prohibiting land grabbing and 80.8 percent were aware of
the norm prohibiting payment to the headman/woman. Of the 132 respondents who were aware
of the first norm, 92 percent answered they did not know of any case of land grabbing in their
village in the last three years, compared to 8 percent who had heard of such a case. Interviews
similarly indicated that the changed norms have become well known and enforced in Uukwambi.
Many people were familiar with the norm and it was generally stated that cases of land grabbing
had severely reduced over the last years, both in traditional courts105 and at the Communal Land
Boards.106

Land grabbing and payment of widows to the headman to retain the land were first outlawed in the 143
written laws of Uukwambi and other Owambo Traditional Authorities, but later also by statutory law,
in the Communal Land Reform Act 2002.107 In interviews, both customary law and statutory law are
referred to as sources of the new norm, and both institutions – traditional authority and government
– are seen as enforcing agencies. It is difficult to clearly deduce which regulatory system has
contributed most to the awareness of the norm. On the one hand, the data of the Communal Land
Boards show that these institutions still received many land grabbing cases in the 2003-2006
period and then saw a gradual decline to almost none at present. This coincides with the
introduction of the Communal Land Reform Act 2002, rather than with the abolishment of the
customary norm by the Owambo Traditional Authorities in 1993. On the other hand, the quantitative
data show that 21.2 percent of the people who are aware of the norm attribute its basis to statutory
law, with 5.3 percent specifically referring to the Communal Land Reform Act 2002 compared to 64.4
percent who mention customary law as the source, and 14.4 percent who say they do not know. In
addition, people quoting the norm for widows regularly add that when both parents die and a child
takes over, this child is not exempted from making a payment to the headman to retain the land. The
 fact that this practice contravenes the Communal Land Reform Act 2002107 but not the written laws
of Uukwambi108 indicates that knowledge of the content of the Communal Land Reform Act 2002 is
at best incomplete109 and that awareness of statutory norms is greater when they reflect customary
norms.

4.2 Comparative experiences

The awareness and acceptance of traditional leaders and common villagers of the changed norms
and the resulting near eradication of land grabbing110 is especially remarkable when compared with
the experiences of other African countries. For example, in Ghana, the national outcry over widows’
plight under customary law led to the enactment of the Intestate Succession Law 1985 (Provisional
National Defense Council (PNDC) Law 111). This law provides that the spouse and/or children are
entitled to the self-acquired house of the deceased and the household chattels of the intestate. The
chattels include jewelry, clothes, furniture, kitchen and laundry equipment, simple hunting and
agricultural equipment, books, motor vehicles and household livestock.111 The remainder of the
estate – when it exceeds a certain minimum amount – is divided among the surviving spouse,
children, parents and the extended family, with the widow and children together entitled to seven-
eighths of the residue of the estate, and in cases where there are no children, the surviving spouse
is entitled to three-fourths.112

A 1998 empirical study in four areas of Ghana revealed high levels of awareness of the existence of
the law – although not necessarily of its exact contents – but limited application of its provisions at
the local level.113 Where the author found an “increasing recognition of the necessity to let children
partake of the enjoyment of their deceased fathers’ intestate estate”, the widow was still generally
marginalized despite a small improvement over the original customary position.114

Several other African countries provide similar case studies. For instance, Malawi,115 Zimbabwe,116
Zambia,117 Liberia118 and Rwanda119 all have statutes that protect the property of widows after the
death of their husband. Application at the local level is, however, considered minimal, due partly to
problems internal to the statutes such as vague wording and being based on assumptions that are
largely urban-based and therefore insufficiently adapted to rural structures of kinship, marriage and
co-habitation.120 However, the main issues hampering effectiveness of the statutes are the limited
awareness most people have of their statutory rights, the pervasiveness of cultural norms and
beliefs surrounding property ownership and gender relations, problems of widows in accessing
police and state justice structures, and the limited extent to which traditional justice structures are
aware of, and are willing to apply, the statutory norms.121

Proposals to expand inheritance rights of women are currently debated in a number of African
countries, sometimes drawing heavy criticism from certain segments of society. For instance, in Mali,
a new family code that was to ameliorate women’s rights of inheritance met with such extreme popular
144 opposition – headed by Islamic organizations and leaders – that “at the last minute before it was
approved, the President sent the bill back to the National Assembly to be reconsidered”.122 An amended
version was then tabled, which altered the previous version’s enhancement of women’s inheritance
rights.123 This version is endorsed by the High Islamic Council, but opposed by the rights groups who
were behind the 2009 bill.124 Until now, no new family code has been approved in Mali.

5. Conclusion

5.1 Self-recording evaluated

This chapter has discussed the three main historical mechanisms that have been developed for
recording customary law, viz. codification, restatements and case law systems. In addition, it has
examined the genesis and the wording of the self-statement in Uukwambi, and analyzed its impact
on the functioning of the Uukwambi justice system. This analysis allows us to answer the question
whether the self-recording process in northern Namibia runs into similar difficulties as the historical
 Chapter 7
devices for recording or whether it provides a recipe for creating a locally legitimate written
statement of customary law.

Just as with the historical recording mechanisms, the process of self-recording created both
deliberate and unintentional alterations to the justice system of the Uukwambi Traditional Authority.
Most notably, the inclusion of norms for the protection of widows constituted a change in
Uukwambi’s substantive customary law, and the unification of penalties reduced the discretion of
traditional leaders in dispute settlement processes. Despite these alterations, the written laws of
Uukwambi seem to enjoy a large measure of local legitimacy, at least among the people that
participate in traditional court meetings. These people almost unanimously agreed that traditional
court cases are decided on the basis of the “written laws of Uukwambi”, and a large majority stated
that they find decisions based on the written laws easier to accept and more fair. In particular, the
recording of fixed, unified fines is mentioned as a significant contribution to the certainty,
predictability and equality of traditional court cases, through a diminution of the discretion and
options for abuse by traditional leaders. The combination of fixed fines and the increased legal
knowledge among the people resulting from a more unified application of customary norms further
limits traditional leaders’ room for maneuver and fosters a sphere of accountability. Traditional
leaders themselves also generally accepted the supremacy of the written laws and welcomed them
as a positive change to the Uukwambi justice system, one that has enhanced the legitimacy and
acceptability of their decisions. One might thus conclude that the local legitimacy of Uukwambi’s
customary justice system, among traditional leaders and common villagers alike, is strengthened
rather than weakened by the process of self-recording.

The new norms protecting widows have generally become well-known and enforced in Uukwambi.
The number of disputes concerning allegations of land grabbing has significantly reduced over the
last 15 years to almost none at present. These figures are witness to a real behavioral change
regarding inheritance rights of widows. It seems safe to conclude, therefore, that the two main
changes that the self-statement propagated – increased protection for widows and unified fixed
fines – have both led to real changes in the application of Uukwambi customary law. They have
therefore not led to a schism between a written version of customary law and a ‘living’ version of
customary law, and thereby avoided the main pitfall of the historical devices for recording
customary law.

5.2 Can Uukwambi’s success be replicated elsewhere?

Three important factors can be identified in the Uukwambi self-statement that set it apart from
other attempts to record customary laws. The first is that the Uukwambi self-statement is not
comprehensive and focuses on a small number of substantive norms in addition to the
documentation of fixed fines. Since law and order issues make up the bulk of traditional court cases
in northern Namibia, the latter has a profound impact in Uukwambi. Documenting fixed fines – and
applying those uniformly in traditional courts – is obviously much simpler than recording and 145
applying the intricate rules surrounding, for instance, marriages, divorce, and other family matters.
In such cases, traditional dispute settlement normally allows for flexibility and negotiation, taking
into consideration circumstantial factors and the proper or improper conduct of the parties.
Recording these subtleties is complicated. Uukwambi traditional courts do not seem to deal with
many family law disputes, which is reflected in the self-statement: in addition to short sections on
adultery and pregnancy of unmarried women, and the new norms on traditional inheritance, the
written Laws of Uukwambi 1950-1995 do not include any family law provisions.

The second factor setting Uukwambi’s self-recording apart from other recording experiences is that
traditional leadership does not offer many lucrative opportunities to most of the traditional leaders
in northern Namibia. In fact, many traditional leaders stated that they used their own money to do
their job well, for instance, for transportation costs to meetings or police stations, or for telephone
costs. Traditionally, these leaders made some money from the allocation of land, but this source has
largely dried up, with almost no unused land in the villages and the new provision that widows do not
 have to pay to retain their land.125 Other small amounts of money might come from traditional court
fees, cattle permit fees, and hut taxes, but these incomes are neither regular nor substantial. The
lack of financial incentive to become a traditional leader or to execute this function in a particular
way influences processes of self-recording. It is easier to reach agreement on the rules of the game
when the stakes are not very high for its players. In addition, the lack of substantial monetary gains
by traditional leaders of recorded norms will not obstruct popular acceptance and legitimacy of
these norms.

A third factor also relates to the willingness of traditional leaders to record norms that are beneficial
to the general welfare of their people. In Namibia, this willingness should be seen in the light of the
involvement of traditional authorities in the administrative structures of the apartheid government.
When the Kozonguizi Commission recommended the retention of traditional leadership, traditional
leaders were eager to seize the opportunity and sought ways to redeem the popular support they
had lost due to their close alignment with the South African colonial regime. This drive has
presumably facilitated the inclusion of fixed fines and widow protection norms. The latter reflected
a widely felt local need as well as a national priority, and the measure to document fixed fines has
been applauded by both common villagers and traditional leaders. In its turn, the inclusion in the
self-statement of norms that are regarded as legitimate in society likely increased the acceptability
and legitimacy of the entire self-statement.

What the above factors have in common is their demonstration that power matters. A self-
statement, as well as any other form of recording customary law, is not a mere technical exercise. It
addresses the definition and crystallization of certain rights and interests as well as the articulation
of desired changes in them, and thus invariably involves a power struggle. The particularities of the
local power constellation, as well as the role and function of traditional leaders and courts, will
determine whether the positive example of self-recording in Uukwambi can be replicated in other
areas of Africa and the developing world.

146
 Chapter 7
footnotes 11 Azinge, above n 7, 285-6; Ojo, above n 10, restatement‘ in A.N. Allott (ed), Integration
1 See section 2 for an elaborate discussion of 316; Osinbajo, above n 5, 264. of Customary and Modern Legal systems in
these critiques. 12 T.W. Bennett and T Vermeulen, ‘Codification Africa: A conference held at Ibadan on 24th-
2 Some initial movements towards of customary law‘ (1980) 24(2) Journal of 29th August 1964 (1971) 18-20. See also W
community dialogue processes and self- African Law, 207. Twining, ‘The restatement of African
ascertainments of customary law can also 13 Ibid 208. customary law: A comment‘ (1963) 1(2)
be witnessed in southern Sudan: T. 14 Ibid. The Journal of Modern African Studies.
15 34 Allott and Cotran, above n 33.
Mennen, ‘Putting theory into practice. K. Eso, ‘Towards Certainty in Our Laws‘ in Y.
35 Ibid 18-19.
Improving customary justice‘ (Conference Osinbajo and A.U. Kalu (eds), Towards a
36 Ibid 25.
Packet for the United States Institute of Restatement of Customary Law in Nigeria
37 Bennett and Vermeulen, above n 12, 9-10.
Peace, George Washington University and (1991) 58.
16 38 Odje, above n 18, 36-7; Tanner above n 24.
World Bank Conference on Customary J-H Jezequel (ed), ‘Collecting Customary
39 Shadle, above n 17, 416.
Justice and Legal Pluralism in Post-Conflict Law’: Educated Africans, Ethnographic
40 E. Cotran, ‘The integration and codification
and Fragile Societies, 17-18 November Writings, and Colonial Justice in French
2009, 140); Rwanda: (RCN Justice & West Africa, Intermediaries, Interpreters, of law in East Africa: The differing
Démocratie and Haguruka Asscociation for and Clerks: African Employees in the approaches of Kenya, Tanzania & Uganda’
Defense of Women and Children’s Rights, Making of Colonial Africa (2006) 139. in Colloque de l’Association Internationale
Beyond raising awareness: Shifting the 17 B.L. Shadle, ‘‘Changing traditions to meet de Droit Africaine (1972) 7.
41 Shadle, above n 17, 413.
social power balance to enable women to current altering conditions’: Customary
42 Ibid 424.
access land. Project document (2010); and law, African courts and the rejection of
43 Allot and Cotran, above n 33, 32-3.
Indonesia: S. Clark and M. Stephens, codification in Kenya, 1930-60‘ (1999) 40
44 Quoted in Eso, above n 15, 58.
Reducing Injustice? A Grounded Approach Journal of African History, 413.
18 45 Shadle, above n 17, 430.
to Strengthening Hybrid Justice Systems: M. Odje, ‘The Repugnancy Doctrine and the
46 G.R. Woodman, ‘Customary law, state courts,
Lessons from Indonesia, IDLO (2011) Proper Development of Customary Law in
3 This terminology is borrowed from M.O. Hinz, Nigeria‘ in Y. Osinbajo and A.U. Kalu (eds), and the notion of institutionalisation of
‘Law reform from within: Improving the legal Towards a Restatement of Customary Law norms in Ghana and Nigeria‘ in A. Allott and
status of women in northern Namibia‘ (1997) in Nigeria (1991) 36; Bennett and G.R. Woodman (eds), People’s law and state
39 Journal of Legal Pluralism 69. Vermeulen, above n 12, 209. law: the Bellagio Papers (1985). Allott himself
4 Land grabbing refers to the customary 19 E. Cotran, ‘Some recent developments in has pointed out in one of his articles that,
practice that, upon the death of a husband, the Tanganyika judicial system‘ (1962) 6(1) although a restatement is only a guide,
his land is inherited by his matrilineal Journal of African Law; Osinbajo, above n 5, writing customary law down will change its
family, and the widow is no longer allowed 265; Azinge, above n 7, 287. character (A.N. Allott, ‘The judicial
to live on it. Land grabbing is part of a wider 20 Bennett and Vermeulen, above n 12, 219. ascertainment of customary law in British
practice of property grabbing, involving the 21 A.J. Kerr, ‘The reception and codification of Africa’ (1957) 20(3) The Modern Law Review,
taking of both movable and immovable systems of law in Southern Africa‘ (1958) 258).
47 Verhelst, above n 23, 42.
property. The changes in Owambo mainly 2(2) Journal of African Law, 96.
22 48 Ibid 39.
target non-movable property, the land, Osinbajo, above n 5, 265.
23 49 Ibid 39.
although this also has some effect on the A.N. Allott, ‘The judicial ascertainment of
50 Ibid 40.
distribution of movable property. The term customary law in Africa‘ (1957) 20 Modern
51 F.A. Ajayi, ‘The Judicial Development of
widow dispossession is also used to Law Review, 248; T. Verhelst, Safeguarding
describe land and property grabbing. African Customary Law: Judicial and Customary Law in Nigeria’ in A.N. Allott
5 Y. Osinbajo, ‘Proof of Customary Law in Legislative Processes for its Adaptation and (ed), Integration of Customary and Modern
Non-Customary Courts‘ in Y. Osinbajo and Integration, UCLA International Institute, Legal systems in Africa: A conference held
A.U. Kalu (eds), Towards a Restatement of James C. Coleman African studies Center, at Ibadan on 24th-29th August 1964 (1971)
Customary Law in Nigeria (1991) 264. Occasional Papers Series (1970) 42, 124; Osinbajo, above n 5, 261.
6 A.N. Allott (ed), The Limits of Law (1980) 52 Ajayi, above n 51, 124.
University of California <http://repositories.
53 Personal communication, 5 September
61. cdlib.org/international/asc/opc/verhelst> at
7 E.C.J. Azinge, ‘Codification of Customary 19 April 2011. 2003.
24 54 A. Claassens, ‘Customary law and zones of
Law: A Mission Impossible?‘ in Y. Osinbajo Kerr, above n 21, 97; R.E.S. Tanner, ‘The
chiefly sovereignty: The impact of
147
and A U Kalu (eds), Towards a Restatement codification of customary law in Tanzania’
of Customary Law in Nigeria (1991) 285-6; (1966) 2(2) East African Law Journal, 106-7. government policy on whose voices prevail
D. Narebo, ‘Codification of Customary Law‘ 25 Narebo, above n 7, 305. in the making and changing of customary
in Y. Osinbajo and A.U. Kalu (eds), Towards 26 Odje, above n 18, 36-7; R.J.H. Pogucki, A note law’, in A. Claassens and B. Cousins (eds),
a Restatement of Customary Law in Nigeria on the codification of customary law on the Land, Power and Custom: Controversies
(1991) 301-2. Gold Coast’ (1954) 8(4) Journal of African Generated by South Africa’s Communal
8 Osinbajo, above n 5. Administration, 193; Shadle, above n 17, Land Rights Act (2008).
9 Many colonial and post-colonial African 55 Ibid 360.
412,416,421-2; Verhelst, above n 23, 41.
27 56 Ibid 363.
statutes and constitutions contain a clause Shadle, above n 17, 421.
28 57 Ibid 360.
that allows judges not to apply customary Odje, above n 18, 36.
29 58 Ibid 363.
law where it seems to them to be in conflict Pogucki, above n 26, 193.
30 59 Ibid 364.
with the principles of natural justice. Verhelst, above n 23, 41.
10 Azinge, above n 7, 287; Narebo, above n 7, 31 60 Shilubana and Others v Nwamitwa (CCT
Pogucki, above n 26, 194.
301-2; M.I. Ojo, ‘Codification of Customary 32 Azinge, above n 7, 286. 03/07) [2008] ZACC 9; 2008 (9) BCLR
Law in Nigeria‘ in Y. Osinbajo and A.U. Kalu 33 A.N. Allott and E. Cotran, ‘A Background 914 (CC); 2009 (2) SA 66 (CC); (4 June
(eds) Towards a Restatement of Customary Paper on Restatement of Laws in Africa: 2008), para 45-49.
61 Owambo is a collective name for 12 tribal
Law in Nigeria (1991) 313. The need, value and value of such
 groups that live in northern Namibia and from Articles 66(1) and 102(5) of the order to strike back at the enemy. Many
southern Angola. Seven of these closely- Constitution of The Republic of Namibia chiefs and headmen accordingly lost their
related societies, linguistically and 1990. The first Article stipulates the validity lives” (Keulder, above n 73, 49, 52).
culturally, live in present-day Namibia: the of the customary law and common law in 76 The 1986 report of the United Nations
Ondonga, Oukwanyama, Ongandjera, force on the date of independence, subject Institute for Namibia (Namibia:
Uukwambi, Ombalantu, Uukwaluudhi and to the condition that they do not conflict Perspectives for national reconstruction
Uukolonkadhi (C.H.L. Hahn, ‘The Ovambo‘ with the Constitution or any other statute and development (1986) as well as the Law
in C.H.L. Hahn, H. Vedder and L. Fourie law. The latter Article calls for the Reform and Development Act 1991, art 29, s
(eds), The Native Tribes of South West establishment of a Council of Traditional 6, mention codification.
Africa (1966); G. Tötemeyer, Namibia Old Leaders whose function it is to advise on 77 Becker, above n 75, 47.
and New: Traditional and modern leaders in communal land management and on other 78 Article 10 of the Namibian Constitution
Ovamboland (1978)). The Owambo people matters referred to it by the President. In 1990, provides that all persons shall be
constitute the largest population group in addition, Article 19 of the Constitution, equal before the law, and that no one may
Namibia. Their home was called guaranteeing the right to culture and be discriminated on the grounds of sex,
Owamboland during the colonial period, tradition, is understood to include the right race, color, ethnic origin, religion, creed or
but today is divided into the Omusati, to live according to one’s customary law. social or economic status. With this Article,
Ohangwena, Oshana and Oshikoto regions. 71 Hinz, above n 64, 68-69. the Namibian Constitution follows Article 1
Almost half of the entire population of 72 Ibid 69. of the Universal Declaration of Human
Namibia lives here on less than 7 percent of 73 Commission of Inquiry, Report by the Rights 1948 as well as Article 2 of the
the Namibian territory (National Planning Commission of Inquiry into Matters relating African Charter on Human and Peoples’
Commission, Population and Housing to Chiefs, Headmen and other Traditional or Rights.
Census (2001) National Planning Tribal Leaders (1991); Hinz, above n 65, 69- 79 Advocate F.J. Kozonguizi, quoted in the
Commission (NPC) <http://www.npc.gov. 70; C. Keulder, Traditional Leaders and Minutes of the Customary Law Workshop
na/census/index.htm> at 5 May 2011). Local Government in Africa: Lessons for of Owambo Traditional Leaders, above n
62 Similar workshops were held in 1994 and South Africa (1998) 65-66. 63, para 5.
1995 by the Kavango and Nama Traditional 74 Commission of Inquiry, above n 73, 73; S. 80 Ms Nashilongo Shivute, quoted in the
Authorities (M.O. Hinz and S. Joas, Düsing, Traditional Leadership and Minutes of the Customary Law Workshop
Customary Law in Namibia: Development Democratisation in Southern Africa: A. of Owambo Traditional Leaders, see Hinz
and perspective,. Centre for Applied Social comparative study of Botswana, Namibia and Joas, above n 62, para 5.
Sciences (CASS) (1996) 207-237). and South Africa (2002) 188; Hinz, above n 81 Minutes of the Customary Law Workshop
63 Minutes of the Customary Law Workshop 64, 69-70. of Owambo Traditional Leaders, see Hinz
of Owambo Traditional Leaders (ibid 193- 75 South Africa’s indirect rule, characterized and Joas, above n 62, para 10. In addition, it
206). The Traditional Authority of by the extensive use of indigenous political was unanimously decided that women
Uukwaluudhi was not represented, but institutions, had “transformed the should be allowed full participation in
their king later expressed his full consent to indigenous polities into local administrative community courts (para 12).
all the decisions made at the workshop. organs dependent on the colonial state.” H. 82 Gordon, above n 66, 8.
64 Recently, the Council of Traditional Leaders Becker, ‘‘New things after independence’: 83 Interview 43, female traditional councilor (4
resolved that all traditional communities of Gender and Traditional Authorities in December 2009).
Namibia embark on such a self-recording postcolonial Namibia‘ (2006) 32(1) Journal 84 Tötemeyer, above n 61, 146.
process (M.O. Hinz, ‘Traditional governance of Southern African Studies, 33. From the 85 Namibia Development Trust, Improving the
and African customary law: Comparative 1960s, Ovamboland became the centre of Legal and Socio-Economic Situation of
observations from a Namibian perspective‘ Namibia’s independence struggle and the Women in Namibia: Uukwambi, Final Report,
in N. Horn and A. Bösl (eds), Human Rights scene of severe fighting between the South Namibia Development Trust, with assistance
and The Rule of Law in Namibia (2009) 85). West African People’s Organisation from SIAPAC-Namibia (1993) 63.
65 Ibid 85. (SWAPO) and the South African army, in 86 Ibid 63.
66 Hinz and Joas, above n 62; See also for which thousands of lives were lost. From 87 The Namibian, 11 and 13 August 2003,
Ondonga: Hinz, above n 3, 72. Gordon cites the 1970s until independence, SWAPO and referred to in Becker, above n 75, 48.
efforts by the Ongandjera to develop a legal the churches were seen as the main 88 Gordon, above n 66.
written code in the early 1960s (R.J. sources of authority by the population, 89 According to the former Secretary of Chief
148
Gordon, ‘Widow ‘dipossession’ in northern rather than the chiefs or the Owambo Iipumbu, Maria Angungu, some districts in
Namibian inheritance‘ (2008) 31(1-2) (homeland) authorities (Becker, 33; Uukwambi were already taking steps
Anthropology Southern Africa, 5). Keulder, above n 73, 84; Tötemeyer, above towards protecting widows before the new
67 Hinz and Joas, above n 62. n 61, 104-5; I. Soiri, The Radical norm was stipulated in the written Laws of
68 Interview 40, senior headman (3 Motherhood: Namibian women’s Uukwambi (1950-1995) (Interview, 4
December 2009); Interview 44 woman independence struggle (1996) 50. The December 2009).
traditional councilor (4 December 2009); chiefs’ already diminished popularity and 90 Gordon, above n 66, 9.
Interview 57, woman traditional councilor legitimacy further waned due to their 91 Minutes of the Customary Law Workshop
(27 January 2010). Chief Iipumbu reported involvement with reconnaissance work and of Owambo Traditional Leaders, see Hinz
that his earliest copy of written laws dates the reporting of strangers to the colonial and Joas, above n 62, para 8.
from 1956. The author has not seen this authorities and with the drafting of people 92 Customary law does not make a clear
copy (Interview 55, Chief and Former for the South West African Territorial Forces distinction between criminal and civil law
Secretary (19 January 2010)). – formed in 1977 in response to SWAPO’s issues.
69 United Nations Institute for Namibia, military successes. The results were 93 This draft was still being discussed by the
Namibia, Perspectives for national serious, as Keulder describes: “Chiefs and Traditional Council when the author left the
reconstruction and development (1986). headmen were often identified as soft field in February 2010.
70 Their recognition can only be deduced targets to be eliminated (by both sides) in 94 Clause 9.2: “The law states that (the/a)
 Chapter 7
house belongs to the husband and wife and 109 Limited public awareness of the Communal wife or wives, and two thirds to the
if the husband dies, then the house will Land Reform Act 2002 is reported by Lotta surviving child or children (J. Pfumorodze,
belong to the wife.” Ambunda and S. De Klerk, ‘Women and ‘Protection of widows and surviving
95 Clause 9.1. children under the intestate succession
Custom in Namibia: A research overview‘ in
96 Many people who have a copy of the laws of Zimbabwe: The case of estates of
O.C. Ruppel (ed), Women and Custom in
written laws of Uukwambi also own copies Namibia: Cultural practice versus gender persons subject to customary law‘ (2010)
of the Traditional Authorities Act 2001 (in equality? (2008) 80. 25(1) Journal of Social Development in
Oshiwambo) and the Oshiwambo version 110 Grabbing of movable property, especially Africa, 47-8).
of J. Malan, A Guide to the Communal Land 117 Zambia’s Intestate Succession Act 1989
livestock, although diminishing, is still a
Reform Act, Act No. 5 of 2002,Legal problem in Owambo, see W. Werner, entitles the widow to receive 20 percent of
Assistance Centre and Namibia National Protection for Women in Namibia’s the deceased’s estate; his children are
Farmers Union (2003). Communal Land Reform Act: Is it working? entitled to equally share 50 percent; his
97 Interview 32, woman traditional councilor parents, 20 percent; and other relatives, 10
(2008) 28-9.
(16 November 2009). 111 Intestate Succession Law 1985 (PNDC Law percent. The Act only applies to land held
98 Interview 51, headman (5 January 2010). under statutory law. Of all land in Zambia, 80
111) sections 3, 4, 18.
99 This occurred in the village of Omaandi, 112 percent is held under customary tenure.
See for discussions of the PNDC Law 111 of
where the senior headwoman, at the Ghana: G.R. Woodman, ‘Ghana reforms the This land and homesteads built thereon are
request of villagers, wrote a letter to the law of intestate succession‘ (1985) 29(2) excluded from the Act (CLEP, Property
headman ordering him to adjust the fine Journal of African Law; K.Y. Yeboa, ‘Ghana’s Rights in Zambia issue paper prepared for
(interview 49, women’s group discussion intestate succession law 1985 PNDC Law the Commission on Legal Empowerment of
(29 December 2009)). 111: A requiem to Islamic law of succession the Poor (DATE) United Nations
100 Interview 48, headman (21 December Development Programme <http://www.
for Ghanaian domiciliaries?‘(1992) 4
2009). African Society of International and undp.org/legalempowerment/reports/conc
101 Interview 50, headman (29 December ept2action.html> at 19 April 2011).
Comparative Law; D.M. Dzidzornu, ‘Human
2009). 118 An Act to Govern the Devolution of Estates
rights and the widow’s material security:
102 Interview 52, headman (8 January 2010). and Establish Rights of Inheritance for
The case of the ‘Intestate Ghanaian widow‘’
103 Namibia Development Trust, above n 85, Spouses of Both Statutory and Customary
(1995) 28(4) Verfassung und Recht in
62 and 72. The study revealed that even Übersee; E.V.O. Dankwa, ‘The application of Marriages (7 October 2003). Published by
when men write wills, their wishes are not PNDC Law 111 and its social and economic the Ministry of Foreign Affairs (Monrovia,
taken into consideration upon their death. impact‘ (1998) 2 Recht in Afrika; H.J.A. N. Liberia, 1 December 2003). See B. Allen,
104 At the court of one of the senior headmen ‘Liberia: Paper Rights Flimsy Protection’,
Mensa-Bonsu, ‘The intestate succession
of Uukwambi traditional authority, they law of Ghana: practical problems in Women’s Net, 13 January 2010, Women’s Net
received only one case regarding land application‘ (1994) 8 Jahrbuch für <http://www.womensnet.org.za/news/liber
grabbing in 2009. Afrikanisches Recht; K. Awusabo-Asare, ia-paper-rights-flimsy-protection> at 5 May
105 The Communal Land Boards (CLBs) are 2011; E. Mooney, Liberia and the Implications
‘Matriliny and the new intestate succession
institutions established in 2003 in line with the law of Ghana‘ (1990) 24(1) Canadian of Women’s Inheritance Rights for IDP Return
Communal Land Reform Act 2002 and tasked Journal of African Studies. and Reintegration: Findings and
among others with dispute resolution 113 Dankwa, above n 112. Recommendations from Mission in April-May
regarding certain land matters. At the Omusati 114 Ibid 243. 2004 (2004), Internal Displacement
CLB, one of its members recounted that they 115 In Malawi, the Wills and Inheritance Act No. 25 Monitoring Centre (IDMC)
had received many cases in the first three-year of 1967, mandates the following division of <http://www.internal-displacement.org/80
term [2003-2006] dealing with land grabbing. the estate: in patrilineal societies, 50 percent 25708F004CE90B/(httpDocuments)/D30
In the second three-year term, the number of to the wife, children and dependents, and 50 786EFC327074D802570B700599D40/$file
these case was severely reduced, and now, in percent to the customary family; in /Mooney+Liberia+paper.pdf> at 28 April
the third term, they no longer receive them matrilineal societies, 40 percent to the wife, 2011; R. Murray, ‘Liberia’s Land Just for
(interview 35 (CLB member Omusati Region), children and dependents, and 60 percent to Some’ IPS, 9 June 2009 <http://ipsnews.
18 November 2009). A member of the Oshana the customary family (S.V.R. White, D.K. net/africa/nota.asp?idnews=47147> at 26
CLB confirmed this trend. They also did not Kamanga, T. Kachika, A.L. Chiweza and F.G. January 2011.
receive any cases regarding land grabbing in 119 Government of Rwanda, Law No 22/99 of
Chidyaonga, Dispossessing the Widow.
the third term of this CLB (interview 48, 12/11/1999 to Supplement Book One of the
149
Gender based violence in Malawi (2002) 36).
headman/CLB member (21 December A new Bill, Bill no. 8 of 2010, Deceased Civil Code and to Institute Part Five Regarding
2009)). Estates (Wills, Inheritance and Protection) is Matrimonial Regimes, Liberalities and
106 Section 26 of the Communal Land Reform Successions. This law stipulates ‘community
currently debated by Parliament. This Bill no
Act 2002 provides that upon the death of a longer includes customary heirs as property’ as default marriage property
holder of a customary land right, the right beneficiaries of the intestate estate (D. regimes and thereby “firmly established
will be re-allocated to the surviving spouse. Mmana, ‘Bill removes hardships on deceased gender equality in land inheritance and in
Section 42 adds that no compensation estates’ The Nation, (Malawi) 19 November property ownership within the majority of
may be demanded or provided for this 2010, The Nation <http://www.mwnation. marriages” (E. Daley, R. Dore-Weeks, and C.
reallocation. com/index.php?option=com_content&view Umuhoza, ‘Ahead of the game: land tenure
107 Section 42 of the Communal Land Reform reform in Rwanda and the process of
=article&id=9727:bill-removes-hardships-
Act 2002 prohibits the payment of any on-deceased-estates&catid=62:national- securing women’s land rights’ (2010) 4(1)
consideration for the allocation of any news&Itemid=59> at 19 April 2011). Journal of Eastern African Studies, 132, 134).
customary land right – save for the costs 116 120 See for instance Mensa-Bonsu, above n
Zimbabwe’s Administration of Estates
involved in registration. Amendment Act number 6 of 1997 112, 108; Pfumorodze, above n 116, 48-54.
108 Section 9 of the written laws of Uukwambi 121 For Malawi: B. Ligomeka, ‘Property
determines the distribution of the estate in
mentions only the surviving spouse. case of dispute: one third to the surviving grabbing impoverishes widows‘ (2003),
 IPS News <http://ipsnews.net/news. <http://english.aljazeera.net/programme <http://www.english.rfi.fr/africa/2010100
asp?idnews=20520> at 28 April 2011; s/witness/2010/09/201095141841631119 6-malis-parliament-continues-family-law-
White et al, above n 115, 38, 101, 105. For .html> at 26 January 2011. See also C. debate> at 19 April 2011.
Liberia: Allen, above n 118; Zambia: R. Debrabandére, ‘Women’s rights languish in 124 Library of Congress, Mali: Bill Seeing to

Maumbu, ‘Women organising for change in Mali’ Deutsche Welle, 8 March 2010, Modernize Family Law Regime Defeated (12
Zambia: Constituting the law on Deutsche Welle <http://www.dw-world. October 2010) Library of Congress
inheritance 1970-1991’ (paper presented at de/dw/article/0,,5323121,00.html> at 5 <http://www.loc.gov/lawweb/servlet/lloc
the conference Southern Africa: Women’s May 2011; Integrated Regional Information _news?disp3_l205402305_text> at 19
Perpectives and the Dutch Connection, Networks (IRIN), Mali: New family law faces April 2011.
Utrecht, 1-3 December 1993); Zimbabwe: opposition from Muslim organisations, 2 125 The going price for piece of residential land

Pfumorodze, above n 116, 54-5; and for May 2008, <http://www.unhcr.org/ and the surrounding mahangu fields was
Rwanda: Daley, Dore-Weeks, and refworld/docid/4820057d1f.html> at 5 widely set at 800 Namibian dollars, which,
Umuhoza, above n 119, 137-140; and RCN May 2011; D.E. Schulz, ‘Political factions, at the time of research, amounted to
Justice & Démocratie and Haguruka ideological fictions: The controversy over approximately US$80. In comparison, in
Asscociation for Defense of Women and family law reform in democratic Mali‘ 2003, a much smaller piece of residential
Children’s Rights. (2003) 10(1) Islamic Law and Society. land in the surroundings of Kumasi, the
122 R. Stewart, The Family Code (a film by 123 Radio France International (RFI), Mali’s second biggest town in Ghana, was worth
Rebecca Stewart, aired on Al Jazeera from parliament continues family law debate (6 an equivalent of US$1,500.
14 October 2010), Al Jazeera October 2010), Radio France International

150
 Chapter 8
CHAPTER 8
Interaction between Customary Legal
Systems and the Formal Legal System
8
of Peru
Ellen Desmet*

1. Introduction

This chapter analyses the interaction between customary legal systems and the formal legal system
of Peru. It will show that the recognition of customary law by the Peruvian state legal system does
not lead to real acceptance of customary norms and structures. This is demonstrated by the
Peruvian legislation on autonomy, land rights and nature conservation. The implications of such a
half-hearted recognition of customary law in state legislation at the local level are illustrated with the
experiences of the Airo Pai- (Secoya), an indigenous people living in the extreme north of the country.

The chapter is based on extensive field experience in the Peruvian Amazon. Doctoral fieldwork
during six months in 2006 (April September) and five weeks in 2009 (April May) was
complemented by annual research visits from 2003 until 2007. Multiple data collection techniques
were used. At the national level, the main sources of information were semi-structured interviews,
document analysis and, to a more limited extent, attendance at meetings. At the local level of the
Airo Pai- territory, these data collection techniques were combined with participant observation.

The two most important sources of document analysis were legislation and scholarly literature.
Interviews were conducted with representatives of the Peruvian state, indigenous organizations,
non governmental organizations (NGOs), independent experts and local people. The interviews
were held in the national capital of Lima, in the regional capital of Iquitos, and in the ancestral
territory of the Airo Pai- The interviews were structured around some general topics, leaving
sufficient room for delving into subjects of particular interest to, or in areas of particular expertise of
the respondents. All taped interviews were transcribed.

The interviews with the Airo Pai- were characterized as follows: the younger, male population
communicated directly in Spanish; whereas the elderly and women needed interpretation between
Spanish and their mother tongue Pai- Cocua, “language of the people”, which was mainly conducted 151
by a family member or a local Airo Pai- teacher. In addition to these interviews, information was
gathered through informal conversations.1

After an introduction on the Airo Pai-, the relevance of customary law with respect to the
organizational and jurisdictional autonomy of indigenous peoples is reviewed. Subsequently, the two
central themes of this chapter are addressed: land rights and nature conservation. Both themes

* Ellen Desmet is a research fellow at the Institute for Foreigners Law and Anthropology of Law of the University of
Leuven, Belgium. She holds a master in law and a master in Cultures and Development Studies, as well as a master in
development cooperation. She obtained her PhD at the University of Leuven (Belgium) with a dissertation on the
relationship between nature conservation and the rights of indigenous peoples and local communities, from a human
rights and legal anthropological perspective. Ellen also works for the interdisciplinary Children’s Rights Knowledge
Centre, where she is responsible for research and policy advice. She can be contacted at [email protected].
This chapter builds on the results of fieldwork carried out in her doctoral research, published in E Desmet, Indigenous
Rights Entwined with Nature Conservation (forthcoming, Intersentia 2011). The author thanks Janine Ubink and Ilaria
Bottigliero for their very valuable comments on earlier versions of this article.
 follow the same structure. First, there is an explanatory note on the different concepts of lands,
territories and property, and on the ambiguous relationship between nature conservation and
indigenous peoples. Second, the growing recognition of the relevance of customary legal systems at
the international level is reviewed with regard to both land rights and nature conservation. Third,
some aspects of the customary legal systems on land rights and nature conservation among the
Airo Pai- are described. Finally, the Peruvian legal system is examined in terms of how it incorporates
and respects customary legal systems, and the impact that this has had on the Airo Pai-.

2. The Airo Pai-

The Airo Pai- (Secoya) are the ancestral inhabitants of the region, today situated in the north of the
Peruvian Amazon. The analysis focuses on the experiences of the Airo Pai- communities of the
Putumayo basin. The Putumayo River forms the natural border between Peru and Colombia. The
other population groups of the Upper Putumayo region are the indigenous peoples of the Kichwa
and Huitoto, and mestizos.

There are eight Airo Pai- communities in Peru, which have a total population of about 588
inhabitants. Six of these communities are situated at the tributaries of the Putumayo River.
Navigating the Yubineto affluent upstream, one successively encounters the villages of Bellavista,
San Martín de Porres, Santa Rita and Nuevo Belén. The community of Mashunta lies at the Angusilla
tributary, while Zambelín de Yaricaya is named after the Yaricaya River. One community, Vencedor
Guajoya, lies at the Santa María River, a tributary of the Napo River, while the community of Puerto
Estrella was recently established at the Lagartococha River.

Map 1. The titled native communities in the Teniente Manuel Clavero District

152

Source: Detail adapted from the map “Territorio de las Comunidades Nativas Tituladas del Río Putumayo”, Information
System on Native Communities of the Peruvian Amazon (SICNA), Instituto del Bien Común (April 1998). The map was
adapted to the actual ubication of the communities of Bellavista, San Martín de Porres and Santa Rita.
 Chapter 8
Airo Pai- can roughly be translated as “People (Pai-) of the Forest (Airo)”. The auto-denomination of
this people already indicates their strong identification with their ancestral territory, rooted in their
cosmology and daily life.2 The outside world knows the Airo Pai- from Peru and their relatives in
Ecuador as Secoya, a Spanish adaptation of Sieco Pai- (people painted with rainbow colors). This is
the name of a now extinct clan and refers to the custom that continues today of facial and corporal
painting using natural pigments.3

The Airo Pai- belong to the linguistic family of western Tucano. The first missionary chronicles
designate these Tucano-speaking groups as “the nation of the encabellados”, because of the custom
of the men to wear their cabello (hair) long.4 Other descendents of these Tucano-speaking groups
today are the Mai Huna in Peru, the Coreguaje and Macacuaje in Colombia, and the Siona and
Secoya in Ecuador.5

3. Autonomy

3.1 Organizational autonomy

The Constitution of Peru does not recognize ‘indigenous peoples’ as a legal subject, but only
recognizes comunidades campesinas (peasant communities) and comunidades nativas (native
communities).6 The indigenous peoples of the Andean Highlands and the coastal areas are
organized in peasant communities. The indigenous peoples of the Peruvian Amazon were requested
to organize themselves in native communities. These communities are historical constructions;
their establishment has led to the fragmentation of the indigenous peoples of Peru in various legal
entities. Today, both types of communities have the same constitutional rights. Nevertheless, their
legal histories and their past social contexts are very different.

The Constitution of Peru 1979 provided for the first time that peasant and native communities “are
autonomous in their organization, in their community work, and in the use of their land, as well as in
the economic and administrative management within the framework established by law”.7 The 1993
Constitution added that the communities were also autonomous “in the free disposition of their
land”.8 The inclusion of the latter phrase undermined the security of indigenous land rights. Indeed,
granting the communities autonomy to freely dispose of their land – which is in general foreign to
their traditions and norms – could lead to the risk that these communities will be put under pressure
by external actors to transfer their land to them. Examples include companies wanting to acquire the
land in order to extract natural resources.

The qualification “within the framework established by law” in the constitutional provision strongly
limits the apparent autonomy of the communities.9 In the different areas where autonomy is granted
by the Constitution, Peruvian law imposes its own regulations. As such, peasant and native
communities are not free to organize themselves according to their traditions and/or present views. 153
The Regulations of the New Law on Native Communities of 1979 prescribe an organizational
structure consisting of an asamblea general (General Assembly) and a junta directiva (Board of
Directors).10 The General Assembly is the supreme organ of the community and is composed of all
the registered community members.11 The Board of Directors is responsible for the government and
administration of the community, and consists of a President, a Secretary and a Treasurer.12
According to the Civil Code, the Directors are periodically elected, by means of “personal, equal, free,
secret and obligatory” vote.13 Gray observes that these provisions have had “the effect of
superimposing a western representative democratic system on top of the customary direct
democratic system in which decisions were taken by consensus. In fact, most communities have
adapted the law to fit in with their own customs and the two systems co-exist, but not without
tensions.”14

How does this restricted constitutional autonomy then materialize in the daily life of the Airo Pai-?
The Board of Directors of an Airo Pai- community consists of the Cacique (Chief/President), the Vice-
 Cacique (Vice-Chief/Vice-President), a Secretary, a Treasurer and one or two vocales (persons
responsible for reminding the community members about upcoming meetings). Elections take
place every two years a la pizarra (at the blackboard). Adult members of the community, men and
women, mark a line next to the candidate of their preference. In contrast to what the Civil Code
prescribes, there is no secret vote. Also, the free character of the vote is doubtful, because it is
plausible that the first voters will influence those who vote after them.15 It was observed that
candidates who did not receive votes in the beginning, did not receive votes later on, and that
influential people in the community affected the voting behavior of people after them. On the other
hand, some persons strategically waited to vote until the end.

Also, with respect to land use and economic issues, peasant and native communities are not as
autonomous as the Constitution states. In reality, economic policies are decided by the national
government, principally the Ministry of Agriculture and the Ministry of Energy and Mines, with little
or no involvement of the indigenous peoples.

The lack of autonomy of the Airo Pai- in the use of their land and in economic management is
apparent from the natural resources policy of the Peruvian Government. Driven by a neoliberal
economic vision, the Peruvian state has given in concession the major part of the Peruvian Amazon
to transnational companies for the exploration and exploitation of hydrocarbons. For example, in
March 2006, the Peruvian state signed an agreement with the company Petrobras Energía Perú S.A.
for 30 years of petroleum exploitation and 40 years of gas exploitation in Block 117. This block covers
the ancestral territory of the Airo Pai-, Kichua and Huitoto peoples. They were not consulted prior to
the concession, which constitutes a violation of International Labour Organization (ILO) Convention
No. 169.16

Finally, the autonomy in administrative management is limited by the system of gobernadores and
teniente gobernadores (local authorities representing the central government) installed by the
Peruvian state. These local authorities represent the Executive Power within the ambit of their
jurisdiction and oversee the implementation of government policies. They are charged with
monitoring compliance with the Constitution and laws, and oversight of the internal order. In
principle, there is a teniente gobernador in each peasant or native community. The “autonomy” of
rural and native communities is thus much more restricted than appears in the Constitution.

It is worth noting that the system of teniente gobernador is rarely implemented in the Airo Pai-
communities of the Upper Putumayo region. The principal authorities in the daily life of the Airo Pai-
are the caciques of the communities and the president of the Organización Indígena Secoya del Perú
(OISPE, Indigenous Secoya Organization of Peru), the local, representative indigenous organization.

3.2 Judicial autonomy

154 Article 149 of the Constitution of Peru 1993 states that “[t]he authorities of the Peasant and Native
Communities ... may exercise judicial functions within their territorial ambit in accordance with
customary law, always providing that they are not violating the fundamental rights of the person”.

The caciques of the Airo Pai- communities identify the following as belonging to their functions:
organizing communal work; representing the community in meetings with external actors;
negotiating for the benefit of the community; and giving advice to their people. The education of
children mostly takes the form of advice on how to work and behave.17 The advisory function is also
used to maintain peace within the community and to mediate conflicts. In addition, the caciques do
not identify conflict resolution as one of their tasks, but only provide advice. Not only the caciques,
but also the elderly, teachers and other wise persons may give advice. Conflicts are rare and of a
minor nature, mainly occurring during drinking events, but have become more frequent as people
are turning away from religious convictions that prohibit alcohol. Sources of frictions are, for
example, jealousy, or livestock roaming and dirtying community patios.
 Chapter 8
Among the Airo Pai- there is little familiarity with the rules of the formal judicial system, and access
to the state judicial system is weak. Until 2004, the Airo Pai- villages fell under the jurisdiction of the
Putumayo District, Maynas Province, Department of Loreto. The nearest state court was a justice of
the peace,18 situated in the capital of the Putumayo District, San Antonio del Estrecho, various days
of boat travel from the Airo Pai- communities. The remaining state judicial institutions were located
in the regional capital of Iquitos. The large distances and the high transport costs implied that there
was little interaction between the Airo Pai- and state actors.

In 2004, the Teniente Manuel Clavero District was created, with the village of Soplín Vargas as its
capital.19 This new jurisdiction, covering the Upper Putumayo region, seceded from the Putumayo
District. A justice of the peace was established in the community of Tres Fronteras, a few hours by
boat from the Airo Pai- communities. In this way, state institutions became closer and thus more
accessible for the Airo Pai- communities of the Upper Putumayo region. To facilitate
implementation of the state policy of access to justice, in March 2010 the judiciary of Peru
donated a solar panel to the justice of the peace of Tres Fronteras, because the village does not
have electricity.

In conclusion, until recently, the physical remoteness of judicial institutions implied the weak
influence of the state judicial system in the Airo Pai-’s daily life. With the recently created justice of the
peace situated closer to the Airo Pai- communities, this may change in the future.

4. Land rights

4.1 The relationship between indigenous peoples and their territories

Indigenous peoples have a unique relationship with their territories. In the Indigenous Peoples’ Earth
Charter20 of 1992, indigenous peoples described this bond as follows:

31. Indigenous Peoples were placed upon our Mother, the Earth, by the Creator. We
belong to the land. We cannot be separated from our lands and territories.
32. Our territories are living totalities in permanent vital relation between human
beings and nature. Their possession produced the development of our culture. Our
territorial property should be inalienable, unceasable [sic]21 and not denied title. Legal,
economic and technical backup are needed to guarantee this.
34. We assert our rights to demarcate our traditional territories. The definition of
territory includes space (air), land and sea. We must promote a traditional analysis of
traditional land rights in all our territories.

The Charter of the Indigenous and Tribal Peoples of the Tropical Forests of 1996 states:
155
Our territories and forests are to us more than an economic resource. For us, they are
life itself and have an integral and spiritual value for our communities. They are
fundamental to our social, cultural, spiritual, economic and political survival as
distinct peoples.22

The indigenous and tribal peoples of the tropical forests demand:

[s]ecure control of our territories, by which we mean a whole living system of continuous and
vital connection between man and nature; expressed as our right to the unity and continuity
of our ancestral domains; including the parts that have been usurped, those being reclaimed
and those that we use; the soil, subsoil, air and water required for our self reliance, cultural
development and future generations.23
 On the basis of the views of indigenous leaders of the Amazon basin, the indigenous territory was
defined by Chirif, García and Smith as:

the mountains, valleys, rivers and lagoons that are identified with the existence of an
indigenous people and that have provided it with its means of subsistence; the richness
inherited from their ancestors and the legacy they are obliged to transmit to their
descendants; a space where every little part, every manifestation of life, every expression of
nature is sacred in the memory and in the collective experience of that people and which is
shared in intimate interrelation with the rest of living beings, respecting its natural evolution
as a unique guarantee of mutual development; the environment of freedom on which that
people exercises control, permitting it to develop its essential national elements and for the
defence of which every member of the people is prepared to shed his blood, rather than
supporting the shame of having to look in the eyes of his dispossessed people.24

According to indigenous peoples’ views, the land not only provides them with their means of
subsistence, but also has a spiritual meaning and constitutes the source of traditional knowledge of
fauna and flora, such as medicinal plants. Moreover, the territory usually forms the basis of their
political organization and socio cultural interactions. The description also refers to the collective
and intergenerational dimensions of the relationship to the territory. However, it must be noted that
there is not always a physical link with the ancestral territory, for example, when indigenous persons
migrate to cities or have been displaced.

In the struggle to defend their territorial rights, indigenous peoples used in their language a legal
concept of the dominant Western order, “property”.25 As Pedro García Hierro describes, some
attributes of the property concept were deemed helpful by the indigenous movement to protect
indigenous territoriality, especially the absolute, exclusive and permanent nature of the power that a
right of property confers to its titular. Given that most legal systems do not offer other possibilities to
protect the indigenous territory, using the concept of property seemed the most appropriate option.

Nevertheless, there are some fundamental differences between indigenous and Western concepts
of property and ownership, which interfere with the use of the property concept to adequately
protect indigenous territories. The concept of private property lies at the core of the Western
economic system, providing the basis for the free and unlimited circulation and accumulation of
goods. While indigenous peoples do have a sense of ownership, for example, with regard to certain
artifacts, traditionally they will rarely use the property concept in relation to the land. In Western legal
systems, the property of land corresponds to an individual or a legal entity, such as a company or
association; these natural or legal persons can freely dispose of the land. In contrast, according to
the indigenous view, the land is not an individual property, but rather is linked to a people.

156 Because various characteristics of the private property concept collide with indigenous
conceptions, some “adaptations” were introduced. For instance, one of the essential qualities of
private Western property is that the owner can freely dispose of the property and mortgage it. Given
the threats this poses to the tenure security of indigenous territories, indigenous peoples claim that
their land is inalienable and unseizable. Also, because the subject of Western property is a natural or
legal person, García Hierro notes how, in the Peruvian legal order, a new legal subject was created,
the “community”, in order to reflect – albeit inadequately – the collective relationship of indigenous
peoples to their territories. These adaptations do not accurately reflect and protect the relationship
between indigenous peoples and their territories; rather, they denaturalize the classical private
property concept. Therefore, the concept of territory more appropriately reflects indigenous views
and rights than the Western property concept.

4.2 On the international scene

The particular attachment of indigenous peoples to their lands, territories and resources is reflected
in various international legal instruments. ILO Convention No. 169 recognizes the “special
 Chapter 8
importance for the cultural and spiritual values” of indigenous peoples of their relationship with their
lands or territories.26 The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)
refers to the “distinctive spiritual relationship” of indigenous peoples with their “traditionally owned
or otherwise occupied and used lands, territories, waters and coastal seas and other resources”.27

For indigenous peoples, “territory” is thus a much broader concept than land. Article 13(2) of ILO
Convention No. 169 states “[t]he use of the term lands … shall include the concept of territories,
which covers the total environment of the areas which the peoples concerned occupy or otherwise
use”. In contrast, the UNDRIP uses the expression “lands, territories and resources” without further
specification.

The customary land rights of indigenous peoples have been recognized in particular within the Inter-
American human rights system. The landmark case of Mayagna (Sumo) Awas Tingni Community v
Nicaragua of 2001 was the first instance where an international court issued a legally binding
decision recognizing the collective rights of indigenous peoples to their lands, territories and
resources.28 In this case, the Inter-American Court of Human Rights stated that “[a]s a result of
customary practices, possession of the land should suffice for indigenous communities lacking real
title to property of the land to obtain official recognition of that property, and for consequent
registration”.29 The land, territorial and resource rights of indigenous peoples do not therefore
depend on prior recognition within the national state legal framework.

In addition to pecuniary redress, the Court ordered two measures in the Awas Tingni case. First,
pursuant to article 2 of the American Convention on Human Rights,30 Nicaragua was ordered to
adopt in general “the legislative, administrative, and any other measures required to create an
effective mechanism for delimitation, demarcation, and titling of the property of indigenous
communities, in accordance with their customary law, values, customs and mores”.31 Second, in the
specific case under consideration, the Court ordered the state to “carry out the delimitation,
demarcation, and titling of the corresponding lands of the members of the Awas Tingni Community”
and until then, “to abstain from acts which might lead the agents of the State itself, or third parties
acting with its acquiescence or its tolerance, to affect the existence, value, use or enjoyment of the
property located in the geographic area where the members of the Awas Tingni Community live and
carry out their activities”.32 As Anaya puts it, the Inter American Court “affirmed not only a right
against state interference with indigenous peoples’ rights in lands and resources without their
consent, but also an affirmative right to state protection from such interference by private parties”.33
The road to enforcement of the judgment was not straightforward. In 2002, the Court ordered
provisional protection measures for the members of the Awas Tingni community on the use and
enjoyment of the property of their lands and natural resources, with the aim of avoiding immediate
and irreparable damages caused by natural resource exploitation activities by third parties on these
lands.34 In 2007, these provisional measures were lifted, but the Court continued to supervise the
enforcement of the judgment.35 On 14 December 2008, the Government of Nicaragua finally handed 157
over the property title to 73,000 hectares of its ancestral territory to the Awas Tingni community.36

4.3 Customary land rights among the Airo Pai-

As mentioned, the Airo Pai- are the original inhabitants of the land situated between the Upper
Putumayo River and the Aguarico, Largartococha and Upper Napo Rivers in Peru. It has been
estimated that they have been present in this region for 1,500 to 2,000 years.37 Their greater
presence at the tributaries of the Putumayo River is recent. Until some decades ago, they held a
semi-nomadic lifestyle.

Different clans lived separately at small tributaries deep in the forest, each in a maloca (oval multi-
family house). Every three to four years, the clan moved for a variety of reasons: the death of a
shaman or another important member of the community (because according to custom, they must
be buried in their own homes); the creation of new families; natural events such as a river silted with
sand or the exhaustion of nearby firewood; or boredom.
 From the 1970s onwards, the presence of mestizo teachers, the establishment of health posts and
evangelization all led the Airo Pai- to create stable and more accessible villages, closer to the principal
rivers. The first such village was San Martín de Porres at the Yubineto River.

Every family has two or three agricultural fields on which manioc, maize and banana are cultivated
based on a shifting cultivation system.38 Each household cultivates its “own” agricultural fields.
Belaunde notes that “[t]he personal property of the fields is based on the notion that a plot of land
belongs to who works and organizes its management. The forest around the community is like a
large parcelled garden.”39 Also, when the field is left as a purma (abandoned field) to recover, the link
with the household that first cultivated the field remains. If other persons want to establish a new
field on the purma, they need to ask permission to that household.

There are various fruit trees in the agricultural fields, such as pijuayo (Bactris gasipaes). These trees
are “like a stamp that marks the territory with the identity of those who sowed them”.40 The
landscape is also modified by cemeteries of the ancestors. Casanova has noted “[a] river may be
uninhabited for decades, but there remain the marks of their ancestors, present in the purmas … and
in the thinking of the elderly of today.”41 The forest is therefore not an empty or virgin place,
untouched by people; its current state is the result of an age long interaction between man and
nature.42

Various agricultural tasks are carried out on the basis of a minga, which is an organizational form of
communal work whereby a family invites relatives and friends to work together on its field. In
exchange, the organizing family brings masato (manioc beer) and sometimes food. They commit
themselves to return the favour at a following minga.

The remainder of the forest, outside the agricultural fields, is considered common property. Within
the Airo Pai- villages, every family has a house with an adjacent garden, where peppers (ají) and fruit
trees are grown. The members of the community can precisely indicate the borders between the
different gardens, although generally they are not physically demarcated.

In addition to subsistence, the territory is also essential for the identity and cultural reproduction of
the Airo Pai- as a people. Various places of historical mythical importance can be identified.
Moreover, the forest provides the Airo Pai- with a range of plants essential for their livelihood and
cultural identity, such as medicinal plants, ayahuasca (yaje), yoco and the chambira palm.

4.4 Peruvian legislation and land rights

The Peruvian state has been particularly reluctant to recognize the territorial rights of indigenous
peoples. This is evidenced by Peru’s abstention from voting on ILO Convention No. 169 at the
International Labour Conference due to, among other reasons, its concern over the use of the term
158 “territories”.43 The Peruvian Parliament subsequently approved the Convention, which came into
force in February 1995. Legislation was not adapted to the international standards, however, as the
concept of indigenous territories is not recognized. The peasant and native communities can only
acquire collective rights over limited lots of land. Indigenous peoples cannot obtain state legal
recognition of the totality of their ancestral territory as such.

In the course of the years, four Airo Pai- native communities have been registered and titled. In the
Putumayo basin, the communities are: i) San Martín de Porres with its annexes Bellavista, Santa Rita
and Nuevo Belén, at the Yubineto River; ii) Mashunta, at the Angusilla River; iii) Zambelín de Yaricaya,
at the Yaricaya River; iv) Vencedor Guajoya, at a tributary of the Napo River at the Santa María River.
However, the Airo Pai- ancestral territory is considerably larger than the sum of the titles of these four
native communities. Important mythological cultural places, such as the Hupo (also called “the
historical monument of the man of stone”) and the cochas encantadas (bewitched lakes) at
Lagartococha, as well as a large number of cemeteries of the ancestors are not included in these
titles. Moreover, the title of the community Vencedor Guajoya at the Napo River is very small, only
 Chapter 8
1,000 hectares; the village today is situated outside its borders. The community of Puerto Estrella at
the Lagartococha River has not yet been titled.

Moreover, within the native communities, only agricultural lands are transferred as property to the
communities; the forest areas within their communal lot are given in concession.44 Given that most
of the lands in the Amazon are forests, on which the native communities depend for their
subsistence activities and cultural reproduction, this provision constitutes a serious limitation of
their rights. The measure may stimulate the slashing and burning of the forest, with the objective of
sowing and requesting titling.45

At present, the effects of these different regulations for agricultural lands and forest lands seem to
be limited. Natives use the whole of their lands irrespective of whether they are agricultural lands
given in property or forest lands given out for use. Nevertheless, there remains a situation of legal
insecurity, which is potentially dangerous. Usage rights are less secure than property rights: at any
moment, the state may decide to assign these lands to another use. According to a lawyer
associated with the indigenous rights movement: “[u]ntil now, there is kind of a dormant situation,
in the sense that people occupy their space and their forests, but that does not mean that the
situation is not dangerous.”46

5. Nature conservation

Peru hosts a rich biological diversity. The creation of protected areas by the state is often considered
by conservationists as the preferred way of protecting biodiversity in situ. Nevertheless, indigenous
peoples and local communities often engage in ways of nature conservation other than the typically
Western protected areas established and managed by government actors.

5.1 The ambiguous relationship between indigenous peoples and nature conservation
Perspectives on the relationship between nature conservation and indigenous peoples are very
divergent: from a proclaimed incompatibility of interests between nature conservation and local
people to a fundamental interdependence between the future of both. Some conservationists
perceive the goals of nature conservation and the interests of indigenous peoples and local
communities as contradictory. In their view, conservation of nature requires strict preservation,
which cannot be reconciled with human presence or resource use.47 Other actors perceive a
convergence between the aims of nature conservation and the interests of local people. Given that
most local communities depend on their natural environment for their subsistence and well-being,
it is in their own interests to conserve their natural resources.48 This convergence of interests has
been particularly advanced with respect to indigenous peoples. Indigenous peoples have been
represented as ‘the stewards of Mother Earth’, those who live in harmony with nature. The Romantic
image of Indians as noble savages, promoted by Locke and Rousseau was taken up again in the 20th 159
century with a focus on the allegedly balanced relationship of native people with nature. The term
“ecologically noble savage” was created; indigenous peoples were represented as “natural
conservationists”.49

A more nuanced position is proposed here: indigenous peoples and local communities are neither
intrinsic destroyers of nature nor ecologically noble savages. First, indigenous peoples and local
communities are not natural conservationists, at least not as understood by Western
conservationists.50 Philosophical or rhetorical declarations of harmony with nature do not suffice to
conclude that effective conservation is taking place.51 Not all local norms and practices were, are, or
will be sustainable or conservationist. Some may even have the opposite effect. For instance, some
groups used to employ poisonous substances to fish in small pools. Also, land scarcity and poverty,
a growing interaction with the liberal market economy and the introduction of new technologies that
facilitate rapid resource extraction may induce more depredatory practices.52 These accelerating
changes often endanger a continued sustainable relationship between the community and its
 natural environment. In fact, few indigenous peoples have managed to “develop a sustainable life-
style once technological inventions or social and economic opportunities have entered their lives”.53

However, “to reject environmental myths about native peoples does not mean suppressing their
historical associations with the land”.54 Various authors observe that many indigenous peoples and
local communities are not familiar with the word “conservation”. Just like “biodiversity”, the concept
of “conservation”55 seems to be a creation of Western rational culture. This does not imply that
conservation – understood as a cultural and political process of protecting nature – is not practised
in non-Western societies, but it is conceived differently.

Indigenous peoples and local communities are not inherent destroyers of nature either. In many
different times and places, local people have managed their communal resources through cultural
practices, attributing “symbolic and social significance to land and resources beyond their
immediate extractive value”.56 Indigenous peoples and local communities have protected certain
areas, species or ecosystems for a variety of reasons, which may be livelihood-related or cultural-
spiritual. It is difficult, however, to ascribe such practices and outcomes to an explicit and conscious
conservation ethic. As Little concludes, “cases in which local communities in low-income regions
manage their resource bases with the prime objective of conservation – rather than improving social
and economic welfare – are virtually nonexistent”.57

Nevertheless, many indigenous peoples and local communities have acquired deep knowledge
about the ecosystems with which they have been interacting on a daily basis for so many years. This
traditional knowledge is still largely unknown and/or insufficiently appreciated by Western
conservation. For instance, the combination of the semi-nomadic lifestyle of Amazonian peoples
with slash-and-burn agriculture left enough time for the forest to recover, which is necessary due to
the limited soil fertility. Slash-and-burn agriculture has long been negatively perceived in
conservation science; it is now recognized that this practice relies on a sustained knowledge of and
insight in the functioning of forest ecosystems.58 Thus, although in most cases no explicit
conservation ethic can be attached to local practices, they often entail beneficial consequences for
the natural environment.

5.2 On the international scene

The relevance of customary legal systems within nature conservation initiatives has been
recognized at the international level. For example, the Corobici Recommendations, adopted at the
international Expert Meeting on the Implementation of Traditional Forest Related Knowledge and the
Implementation of Related International Commitments in San José, Costa Rica, in 2004, address
the issue of traditional forest-related knowledge.59 The following recommendation on conservation
and protected areas was included:

160 6. Reform national forest and conservation policies, laws, institutions, and land tenure
regimes to recognize indigenous peoples’ unambiguous and secure rights to
collectively own, manage, and control their territories, forests and other natural
resources, taking into account their traditional lifestyles and customary systems of
tenure, especially those relevant to traditional knowledge.60

In recent years, the concept of Community Conserved Areas (CCAs) was proposed by the World
Conservation Union (IUCN)61 to refer to conservation initiatives of indigenous peoples and local
communities.62 At the fifth World Conservation Congress in Barcelona, the terminology was refined
to Indigenous Peoples’ and Community Conserved Areas (IPCCAs). Three key conditions must be
fulfilled for an area to qualify as an (IP)CCA:

(I) a strong relationship exists between a given ecosystem, area or species and a
specific indigenous people or local community concerned about it because of
cultural, livelihood-related or other strongly felt reasons;
 Chapter 8
(II) the concerned indigenous people or local community is a major player in decision
making about the management of the ecosystem, area or species; in other words, the
community possesses – de jure or de facto – the power to take and enforce the key
management decisions regarding the territory and resources (a community
institution exists and is capable of enforcing regulations);

(III) the voluntary management decisions and efforts of the concerned community
lead to the conservation of biodiversity, ecological functions and associated cultural
values, regardless of the objectives of management originally set out by the
community.63

There is a huge diversity of IPCCAs, including sacred lakes and forests, indigenous territories, community
forests, and formal protected areas managed by local communities. Borrini-Feyerabend and Lassen
have distinguished four governance sub-types of IPCCAs. In two types, IPCCAs are governed by
traditional institutions; in the two other types, IPCCAs are governed by “relatively new institutions”, which
make use of modern techniques such as written rules and voting systems. Traditional institutions may
have maintained their basic characteristics over time (sub-type T1), or may have recently been tailored
to new conditions, such as the interaction with the Government. However, the traditional institutions
maintain their unique character and accountability towards the communities (sub-type T2). IPCCAs
may also be governed by relatively new institutions. These may have developed spontaneously within the
community, without substantial external influence (sub-type N1), or may be the result of the impact of
government agencies, NGOs, and/or conservation and development projects. In this case, the rules and
governance institutions match external (legal) criteria (sub-type N2).

IPCCAs may also differ in their relationship with the government. One of the three essential
characteristics of an IPCCA is that indigenous peoples or local communities have de facto authority over
the IPCCA. A distinction between four sub-types may be made: two subtypes of de facto IPCCAs and two
subtypes where IPCCAs are formally recognized by the government. First, there are IPCCAs governed by
indigenous peoples or local communities without any interference by government agencies or
incorporation in state legislation (sub-type DF1). Second, some IPCCAs are in an uncertain situation,
“with the power relationship between the state and the indigenous peoples or local communities being
unclear and at times negotiated on an ad hoc basis” (sub-type DF2).64 Third, the community institutions
governing IPCCAs may be formally recognized by the government, but this recognition does not curtail
local autonomy or decision-making authority. On the contrary, the position of the IPCCAs is reinforced
and supported by legal authority (sub-type DJ1). Finally, the community institutions governing the
IPCCAs may be formally recognized by the government, but in a way that requires modifications to the
prior governance institutions, to comply with legal or other criteria (sub-type DJ2).

Two types of IPCCAs seem to be particularly successful: i) IPCCAs situated in remote areas, outside
the influence of government agencies or private actors (sub-types DF1/T1); and ii) IPCCAs 161
benefiting from “an appropriately supportive legal and policy framework, matching community
institutions able to take advantage of it”.65 With respect to the latter situation, Borrini-Feyerabend
and Lassen state:

Although many CCAs are based on customary law and traditional practice, the level of
recognition and support by the state and other social actors can be decisive for their
survival. … CCAs that are most “visible” and important in terms of ecological values
and natural resources are critically dependent on the ability of indigenous peoples
and local communities to be recognized as legal subjects, to make decisions about
land and resource uses, to hold secure tenure over resources, and to exclude
outsiders from appropriating these resources.66

In October 2007, the Second Latin American Congress on Protected Areas was held in Bariloche,
Argentina. In the Bariloche Declaration, the concept of Indigenous Conservation Territories was
 proposed as a “legitimate governance model for protected areas established in indigenous peoples’
ancestral territories”.67 IUCN was requested:

to consider integrating the concept of Indigenous Conservation Territories as a

legitimate governance model for protected areas established in indigenous peoples’
ancestral territories, whatever the management category may be, and to recognize in
that model the integration of culture and nature, the role of customary rights, the
traditional institutionality and the exercise of indigenous authority in such territories.68

5.3 Customary conservation-related norms among the Airo Pai-

Various places within the Airo Pai- ancestral territory can be categorized as culturally protected
areas.69 These areas are avoided or left untouched for cultural-spiritual reasons and thus strictly
conserved in practice. This is the case for Hupo, where, according to their mythology, the Airo Pai-
originated. This place is also called “the historical monument of the man of stone”, because it is told
that once there was a young man laying there in a hammock. According to the mythology, the young
man was too lazy to go hunting and despite various invitations, he always insisted on being left to
sleep. In the end, his hammock was shaken; the young man fell out and was converted into a
stone. Today, if one goes there, the animals can talk but one is not allowed to speak. To sharpen a
machete on the rock, one must first strew no’cua cono (traditional banana beer) and if not, blood will
come out of the stone. It takes five days to get there and one day to return.

Another example of culturally protected areas is the cochas encantadas (bewitched lakes), which
are mostly found in the Lagartococha area but also elsewhere. The Airo Pai- say that “if one goes
there, even if it is one o’clock in the afternoon it will become dark with flashes of lightening and rain.
One cannot walk there”.70

These culturally protected areas can be qualified as indigenous peoples’ and community conserved
areas (IPCCAs) because they fulfill the three requirements proposed by IUCN (cf. supra): i) a strong
relationship between the given area and a specific indigenous people; ii) the indigenous people
concerned has (or had) de facto the power to take and enforce the management decisions as
regards the territory; and iii) the voluntary management decisions lead to the conservation of
biodiversity and associated cultural values.

An example of a conservation-related norm recently agreed on is the establishment of fish quota by

the families living in the community of Zambelín de Yaricaya. In contrast to the other Airo Pai
communities, in Zambelín, fish can be sold to Colombian merchant boats. This is because of the
geographical location of Zambelín de Yaricaya at a tributary more upstream the Putumayo River and
closer to the Colombian city of Puerto Leguízamo, the main commercial centre of the region where
the fish can be put up for sale. At a certain point in time, this economic opportunity was leading to
162 overfishing. To counter this, the community of Zambelín agreed in a communal assembly to
establish fish quotas per family. At the time of the fieldwork in 2006, these norms were relatively well
complied with, and new resource management rules were adopted in response to overexploitation.

5.4 Peruvian conservation legislation

The Protected Natural Areas Law of 1997 lays the foundations for the current legal regime on
protected areas in Peru. Since May 2008, the responsible state institution for protected areas is the
Servicio Nacional de Áreas Naturales Protegidas por el Estado (SERNANP, National Service of
Natural Areas Protected by the State), which falls under the newly created Ministry of the
Environment.71

There are three types of protected natural areas: national, regional and private. The protected areas
at the national level are divided into nine management categories, depending on their objectives and
the degree of natural resource use allowed. These nine categories are grouped together into
“indirect use” protected areas and “direct use” protected areas.72
 Chapter 8
In indirect use protected areas, both the extraction of natural resources and the modification of the
natural environment are prohibited. Only indirect uses are permitted, such as non-manipulated
scientific investigation, education, recreation, tourism and cultural activities. There are three
categories of indirect use protected areas: national parks, national sanctuaries and historical
sanctuaries. In direct use protected areas, on the other hand, natural resource use or extraction is
allowed, primarily for the local population, in the manner provided for in the management plan.
Other uses and activities carried out must be compatible with the objectives of the protected area.
Direct use protected areas include: landscape reserves, wildlife refuges, national reserves,
communal reserves, protection forests and hunting refuges. Here, the focus is on the category of
communal reserves, because the local population enjoys more extensive management and
resource use rights in these areas than in other categories of protected areas.

Pursuant to the Protected Natural Areas Law of 1997, communal reserves are defined as “areas
destined to the conservation of wild flora and fauna, to the benefit of the nearby rural population”.73
The Protected Natural Areas Regulations of 2001 explicitly include “peasant or native communities”
among the beneficiary population.74 Given that communal reserves, in contrast to the other
protected areas, are established to the benefit of the neighbouring population, a special regime of
administration applies to this category. The 2001 Regulations envision the central tenets of this
regime along the following lines:

The administration of the Communal Reserves corresponds to a Special Regime ...

Their management is done directly by the beneficiaries in accordance with their
organizational forms, in a long-term process, wherein they consolidate their
knowledge associated with conservation and sustainable resource use, exercising
their rights and obligations with the State, for the administration of the Patrimony of
the Nation.75

The aim of the special regime is therefore that the beneficiaries themselves directly administer the
communal reserve “in accordance with their organizational forms”. This phrase seems to open up
the possibility for the application of customary norms and organizational structures.

In 2005, the Special Regime for the Administration of Communal Reserves (Special Regime) was
adopted. According to this norm, the management of communal reserves aims at “strengthening
the strategic alliance” between the state and the beneficiaries for the conservation and sustainable
use of biodiversity.76 The glossary annexed to the Special Regime describes the term “strategic
alliance” as a “voluntary union, long-term agreement”.

The communal reserves are administered on the basis of a contract of administration between the
Peruvian state and the beneficiaries of the communal reserve, who are represented by the Executor.
The national protected areas institution SERNANP is represented in the communal reserve by the 163
Chief of the protected area. The actual management of the communal reserve is entrusted to the
Ejecutor del Contrato de Administración (Executor of the Contract of Administration), who
represents the beneficiaries. The beneficiaries are the peasant or native communities, or the local
organized population who complies with the criteria of “proximity, traditional use of the natural
resources and conservation of biodiversity”.77 The Executor is a non-profit legal person created by
the beneficiaries with the aim of managing the communal reserve. When the communal reserve
involves two or more indigenous peoples, the Executor is multicommunal and intercultural. The
Special Regime prescribes that, as a minimum, the Executor consists of two organs: a General
Assembly and an Executive Committee.

The General Assembly consists of the direct representatives of the beneficiaries — “presidents,
chiefs, apus (leaders) or other denominations of these representatives of the native and peasant
communities and of the local organized population, and other members of the community or local
organized population adjacent to the Communal Reserve, expressly elected to represent them
 through assembly minutes.” No attention is paid to guaranteeing the participation of women.
Pursuant to Article 13 of the Special Regime, the representative organizations of the peasant and
native communities belonging to indigenous peoples and the local organized population can also
participate in the General Assembly.

The members of the Executive Committee are elected among the beneficiaries of the General
Assembly. The Committee is responsible to SERNANP for compliance with the contract of
administration. The Special Regime thus assigns the task of representing the Executor to the
Executive Committee as a whole. Given that in the Executive Committee, there is no clear definition
of the competence of its members, this may cause problems of representation. For instance, the
President, the Secretary and the Treasurer take decisions independently such as on reaching
different agreements with the Chief of the communal reserve. Logically, one might deduce and
accept that the President of the Executive Committee has the competence and power to represent
the Committee and the Executor. However, an interviewed expert described the mentality in Peru in
this regard as follows:

So says the law, so it must be done [Tal como dice la ley, se debe dar]. The law does
not explicitly state that there must be a representative person, who can be the
president, it can be whoever. It does not say it; therefore who reads [the law] – and
especially all those that are in the state always have a very faithful reading of what is
said [in the text] – will always wait until 4 or 5 persons are together [before doing]
anything.78

The beneficiaries can decide to create other organs of the Executor, in accordance with the
characteristics of the communal reserve, taking into account various factors such as its location,
extension, the number of ethnic groups, and the number of beneficiary communities. Aspects
concerning the establishment of the Executor that are not regulated by the Special Regime are
subject to the norms of the Civil Code and “where appropriate”, to their own traditional mechanisms
of decision-making. This formulation subjects the application of traditional mechanisms to arbitrary
interpretations, as discussed below.

The original idea expressed in the Protected Natural Areas Regulations of 2001 that the beneficiaries
manage the communal reserve “in accordance with their organizational forms” has thus been
seriously mitigated in implementation. The beneficiaries are not free to organize themselves as they
see fit given that the Special Regime imposes the basic structure of the Executor: a General
Assembly and an Executive Committee. This structure reflects the organizational structure of a
native community as prescribed by the Regulations of the New Law on Native Communities of 1979,
which consists of a General Assembly and a Board of Directors, as explained above (section 2.1).

164 This organizational system at the communal level is thus replicated for the Executor of the Contract
of Administration, where the Board of Directors is called the Executive Committee. Not only is this
organizational system unconnected with indigenous tradition and limits the announced freedom of
organization, but it may also be inappropriate because the Executor does not represent one, but
various communities. During an interview, an expert expressed doubt as to the appropriateness of
applying the internal organizational structure of the community to a multicommunal entity.79

With respect to the right of self-determination and the autonomy of indigenous peoples, the author
believes that it should have been left to the beneficiaries to determine their organizational structure
among themselves. An agricultural engineer with long-standing experience in the administration of
communal reserves suggested that the only binding requirement, necessary for the appropriate
operation and coordination, would be the explicit designation of the representative of the Executor
answering to SERNANP.80 The structure of a General Assembly and Executive Committee could
then have been provided as a subsidiary system. It can be concluded that the original idea
expressed in the Protected Natural Areas Regulations of 2001, i.e. that the beneficiaries would
 Chapter 8
manage the communal reserve “in accordance with their organizational forms”, has been seriously
mitigated in its further development in the Special Regime of 2005.

The Special Regime for the Administration of Communal Reserves contains various other
illustrations of the ambiguous manner in which the state legal system is dealing with customary law.
In some cases, no further requirements are attached to the application of customary law. An
example is the system of vigilance and control of the activities carried out within the communal
reserve. In case of peasant and native communities, these actions of vigilance and control are
established “considering the norms of customary law, ILO Convention No. 169 and, where
applicable, the provisions of Article 149 of the Political Constitution of Peru”.81

In other cases, the application of customary law is subordinated to standards of “appropriateness”

and/or compatibility with other interests. For example, the Special Regime states that for issues not
regulated by it, the general norms on protected areas apply, and “where appropriate, the customary
norms compatible with the objective of the Communal Reserve”.82 The use of customary norms is
thus subject to a rather vague norm of “appropriateness”. Moreover, customary norms may only be
applied when they are in line with the aims of the communal reserve, thus subordinating the
application of customary law to conservationist interests. Similarly, the supervision of the
communal reserve is carried out “in harmony with the provisions of the Special Regime and, where
applicable, with the traditional government systems of the beneficiary indigenous peoples”.83 No
further guidance is provided on the situations in which traditional government systems would apply.

To date, no communal reserves have been effectuated in the Airo Pai- ancestral territory. In 1997, a
provisional protected area, the Güeppí Reserved Zone, was superimposed on the Airo Pai- territory.
Nevertheless, as of January 2011, the proposal to categorize this area as one national park and two
communal reserves had not yet been endorsed at the national level. Therefore, the impact of the
organizational structure of communal reserves on the Airo Pai- as prescribed by Peruvian law could
not be assessed.

6. Conclusion

In this country-specific study of Peru, it was illustrated how the recognition of indigenous customary
law and traditional forms of organization and decision-making has often been nullified or seriously
mitigated by the subsequent imposition in legislation of rules, organizational structures, and
decision-making processes that are at odds with the indigenous systems concerned.

The constitutionally enshrined “organizational autonomy” is restricted by legal provisions on the

organizational structure of peasant and native communities. The lack of indigenous autonomy in the
use of their land and in economic management is apparent from the natural resources policy of the 165
Peruvian Government. The autonomy in administrative management is limited by the system of
political authorities installed by the Peruvian state. As regards judicial autonomy, it was noted that,
until recently, the Airo Pai- enjoyed judicial autonomy in practice because of the physical remoteness
of the state judicial system; this may be about to change, however.

The customary land rights of indigenous peoples have been recognized at the international and Inter-
American levels. And yet, in Peru, peasant and native communities can only acquire rights over limited
lots of land. Moreover, only agricultural lands are given in property; forest lands are ceded in use.

Also, with regard to nature conservation, the relevance of customary legal systems is being increasingly
acknowledged at the international level, as shown, for instance, from the advancement of the concept
of Indigenous Peoples’ and Community Conserved Areas. Although in Peru the protected area category
of communal reserves to some extent accommodates the customs and traditions of indigenous
peoples, there are some legal clauses limiting the weight given to customary legal systems.
 Provisions on the recognition or application of customary law are therefore often mitigated by
qualifiers that pave the way for arbitrary interpretations. Customary law or traditional decision-
making mechanisms are, for instance, only applied “where appropriate”. No real and effective space
is given to the application of rules other than those originating in the state legal system.

footnotes Convention No. 169”). Approved in Peru by Surrallés and P. García Hierro (eds) Tierra
1 This could be while rolling the spears of the Legislative Resolution No. 26253 on 2 Adentro. Territorio Indígena y Percepción
chambira palm before sunrise, bathing and December 1993 and ratified by the del Entorno (2004) 277, 279-283.
Executive Power on 17 January 1994. The 26 ILO Convention No. 169, art 13, 1.
washing clothes in the river, working on the
Convention entered into force on 2 27 UN General Assembly, Declaration on the
field, having dinner, navigating in a canoe,
or participating in a festivity. Notes were February 1995. Article 15(2) states: “In Rights of Indigenous Peoples, GA Res
written down immediately afterwards cases in which the State retains the 61/295, 61st session 2007, art 25, UN Doc
whenever possible. ownership of mineral or sub-surface A/RES/47/1 (UNDRIP).
2 resources or rights to other resources 28 Inter-American Court of Human Rights,
J. Casanova, ‘Migraciones aido pai
(Secoya, Pioje)’ (1980) III(5) Amazonía pertaining to lands, governments shall Mayagna (Sumo) Awas Tingni Community v
Peruana III 75, 101. establish or maintain procedures through Nicaragua (2001) Ser C no 79.
3 which they shall consult these peoples, 29 Ibid para 151.
L.E. Belaunde, Viviendo bien. Género y
with a view to ascertaining whether and to 30 In the American Convention on Human
fertilidad entre Los AiroPai de la Amazonía
Peruana (2001), 31-33. what degree their interests would be Rights article 2 states: “Where the exercise
4 J. Chantre and Herrera, Historia de las prejudiced, before undertaking or of any of the rights or freedoms
misiones de la Compañia de Jesús en el permitting any programmes for the [recognized in the American Convention] is
Marañõn Español 1637-1767 (1901), 62-63. exploration or exploitation of such not already ensured by legislative or other
5 Ibid 34-35; M.S. Cipolletti, ‘Jesuitas y resources pertaining to their lands.” provisions, the States Parties undertake to
17 Belaunde describes different ways of giving adopt, in accordance with their
Tucanos en el Noreste Amazónico del siglo
XVIII. Una Armonía Imposible’, in S. Negro advice. Formal advice is provided before constitutional processes and the
and M.M. Marzal (eds), Un reino en la sunrise or on important occasions such as provisions of this Convention, such
frontera. Las Misiones Jesuitas en la the first wedding. Advice is also given in legislative or other measures as may be
América colonial (1999), 223, 230. humorous myths or when consuming necessary to give effect to those rights or
6 See generally M. Ludescher, ‘Las important plants such as yoco. Belaunde, freedoms.”
above n 3, 111-117. 31 Emphasis added. Inter-American Court of
sociedades indígenas de la Amazonía en el
18 The justice of the peace is at the lowest Human Rights, Mayagna (Sumo) Awas
derecho peruano: La ‘comunidad nativa’ –
institución jurídica y realidad social’ (1986) hierarchical level of the judicial power; in Tingni Community v Nicaragua (2001) Ser
1 Law and Anthropology 131-176. principle, each district has a justice of the C no 79, para 164. In the case of the
7 Constitution of Peru 1979, art 161. peace. Sawhoyamaxa Indigenous Community v
8 19 Law Creating the Teniente Manuel Clavero Paraguay, the state was similarly obliged to
Ibid art 89.
9 See generally M. Ludescher, ‘Indigenous District in the Province of Maynas, take the “legislative, administrative and
peoples’ territories and natural resources: Department of Loreto, 2004. other measures necessary to provide an
20 The Indigenous Peoples’ Earth Charter was efficient mechanism to claim the ancestral
international standards and Peruvian
legislation’ (2001) 11 Law and Anthropology the outcome of the Kari Oca Conference, lands of indigenous peoples enforcing their
156-178. an event organized by indigenous peoples property rights and taking into
10 Regulations of the New Law on Native to have their voices heard, in parallel with consideration their customary law, values,
Communities 1979, Supreme Decree No. the United Nations Conference on practices and customs”. Emphasis added.
003-79-AA. Environment and Development (UNCED) Inter-American Court of Human Rights,
11 Ibid art 21. See also Civil Code 1984, art 138. in Rio de Janeiro. Sawhoyamaxa Indigenous Community v.
12 21 The Earth Charter uses the term Paraguay, Ser. C, no. 146, para 235 (29
Regulations of the New Law on Native
Communities 1979, art 22. “unceasable”, although the idea was March 2006).
32
166 13 Civil Code 1984, art 138. presumably to state that the territorial Inter-American Court of Human Rights,
14 A. Gray, Indigenous Rights and property of indigenous peoples is to be above n 28, para 164.
“unseizable”, that it cannot be seized. 33 J. Anaya, “Indigenous Peoples’
Development. Self-determination in an
22 International Alliance of the Indigenous and Participatory Rights in Relation to
Amazonian Community (1997) 78. An
example of this adaptation of the law to Tribal Peoples of the Tropical Forests, Decisions About Natural Resource
local customs is the electoral process ‘Charter of the Indigenous and Tribal Extraction: The More Fundamental Issue of
among the Airo Pai-, as elaborated further Peoples of the Tropical Forests’ What Rights Indigenous Peoples Have in
in the following paragraph. (Established Penang, Malaysia, 15 February Land and Resources” (paper presented at
15 E. Desmet, ‘El impacto de procesos 1992; Revised Nairobi, Kenya, 22 the American Association of Law Schools
transnacionales en la organización de los November 2002), art 3. Conference, January 2005, 14).
23 Ibid art 14. 34 Inter-American Court of Human Rights,
Airo Pai (Secoya) de la Amazonía Peruana’
24 A. Chirif Tirado, P. García Hierro and R. Mayagna (Sumo) Awas Tingni Community v
(2009) 71 Nueva Antropología 162.
16 Convention concerning Indigenous and Chase Smith, El indígena y su territorio son Nicaragua, Provisional Measures (6
Tribal Peoples in Independent Countries uno solo: estrategías para la defensa de los September 2002).
pueblos y territorios indígenas en la cuenca 35 Inter-American Court of Human Rights,
(ILO No. 169), opened for signature on 27
June 1989, 72 ILO Official Bull 59 (entered amazónica (1991) 27-28. Mayagna (Sumo) Awas Tingni Community v
25 P. García Hierro, ‘Territorios indígenas: Nicaragua, Provisional Measures (26
into force 5 September 1991) (“ILO
tocando a las puertas del derecho’ in A. November 2007).
 Chapter 8
36 See, e.g. Inter-American Commission on 53 K. von Benda-Beckmann, ‘The /about/union/commissions/wcpa/wcpa_f
Human Rights, ‘IACHR hails titling of Awas environmental protection and human rights ocus/?11/Indigenous-Conservation-
Tingni Community Lands in Nicaragua’, of indigenous peoples: a tricky alliance’ Territory-A-new-option-for-governance-of-
Press Release no, 62/08 (18 December (1997) 9 Law and Anthropology 302, 303. protected-areas>.
54 68 Emphasis added. Second Latin American
2008). R.H. Keller and M.F. Turek, American
37 W. Vickers, Los Siona y los Secoya. Su Indians & National Parks (1999) 239. Congress on National Parks and Other
Adaptación al Medio Ambiente (1989). 55 See, for example, A. Gray, ‘Indigenous Protected Areas, ‘Bariloche Declaration’
38 Traditionally, the Airo Pai- practise peoples, their environments and (2007) para 17, <http://www.rlc.fao.
agriculture according to the moon. The territories’ in D.A. Posey (ed), Cultural and org/es/tecnica/parques/pdf/BariDecl.pdf>.
69 In general, biological investigations in the
moon indicates the start of a different Spiritual Values of Biodiversity (1999),
phase in the agricultural cycle; a complete 61 66; D.A. Posey, ‘Interpreting and region demonstrate that the Airo Pai
cycle consists of five moons. For a detailed applying the “reality” of indigenous ancestral territory is characterized by a
analysis of the agricultural system of the concepts: what is necessary to learn from rich biodiversity and high species
Airo Pai-, see J Casanova, ‘El sistema de the natives?’ in K.H. Redford and C Padoch endemism. These data support the
cultivo Secoya’ in A Chirif (ed), Etnicidad y (eds) Conservation of Neotropical Forests proposition that the Airo Pai- traditionally
Ecología (1978) 41-53. (1992) 21-34. lived in a more or less ecologically balanced
39 Belaunde, above n 3, 169. 56 Gomez-Pompa and Kaus, above n 42. way. See W Alverson et al (eds) Ecuador-
40 Ibid 68. 57 O.J. Little, ‘The link between local Perú:Cuyabeno-Güeppí, Rapid Biological
41 J. Casanova, ‘Parentesco, mito y territorio participation and improved conservation: a and Social Inventories Report 20 (2008);
entre los aido pai (Secoya) de la Amazonía review of issues and experience’, in D. Asociación Peruana para la Conservación
peruana’ (2005) 15(IX) Investigaciones Western and M.R. Wright (eds) Natural de la Naturaleza – ECO Studien Sepp &
Sociales 15, 18. Connections: Perspectives in Community- Busacker Partnerschaft, Estudio de Línea
42 A. Gomez Pompa and A Kaus, ‘Taming the Based Conservation (1994) 347, 350. de base biológico y social para el monitoreo
wilderness myth’ (1992) 42(4) Bioscience 58 Gomez-Pompa and Kaus, above n 42. en la Zona Reservada de Güeppí (2006).
59 70 Similarly, with respect to the Kayapó, Posey
271-279. International Expert Meeting on the
43 J. Anaya, Indigenous Peoples in Implementation of Traditional Forest- noted that they “believe that old,
International Law (2nd edition, 2004) 85- Related Knowledge, ‘Corobici abandoned village sites are full of spirits.
86, 100 and 103. Recommendations’ (2004). Fear of spirits puts these old sites off limits
44 New Law on Native Communities 1978, art 60 Emphasis added. Ibid para 17. for many Indians. Only those that deal with
11, Decree Law No. 22175. 61 The International Union for Conservation of spirits – shamans – and special hunting
45 B. Monteferri, ‘Áreas naturales protegidas: Nature (IUCN), also known as the World parties go to these sites. Thus, these
los efectos jurídicos de su establecimiento Conservation Union, is an NGO with a abandoned camps and villages effectively
sobre predios de propiedad privada’ remarkable membership, as its members become protected reserves with a high
(2008) 6 Revista de Derecho include states, government agencies, diversity of secondary growth that also
Administrativo 338-361. national and international NGOs. IUCN has attracts many animals. The spirits
46 Interview on file with the author (7 taken a leading role on the international effectively serve as ecological protective
September 2006, Iquitos). environmental scene in general, and in agents.” Posey, above n 55, 25.
47 71 Until May 2008, the state authority
See, for example, R. Kramer, C. van Schaik, promoting the integration of the rights and
and J. Johnson (eds), Last Stand: Protected interests of indigenous peoples and local responsible for protected natural areas
Areas and the Defense of Tropical communities in conservation policy, in was the Instituto Nacional de Recursos
Biodiversity (1997); J. Terborgh, Requiem particular. Naturales (INRENA, National Institute of
for Nature (2004). 62 G. Borrini-Feyerabend and B. Lassen, Natural Resources).
48 72 Protected Natural Areas Law 1997, art 19.
J.O. Lynch and J.B. Alcorn, ‘Tenurial rights ‘Community Conserved Areas: A Review of
73 Ibid art 22(g).
and community based conservation’ in D. Status & Needs after Durban 2003 and
74 Protected Natural Areas Regulations 2001,
Western and M.R. Wright (eds) Natural CBD COP 7 2004. Preliminary Synthesis’
Connections: Perspectives In Community- (2008) 7. art 56.1.
63 75 Ibid art 56.2.
Based Conservation (1994) 373, 385. It has also been accepted that the
49 76 Special Regime for the Administration of
K.H. Redford, ‘The Ecologically Noble management decisions and activities “are
Savage’ (1991) 15(1) Cultural Survival well in the process of leading to” Communal Reserves 2005, arts 11, 19, 48.
77 Ibid art 6.
167
Quarterly. conservation. Ibid 9.
50 64 78 Interview with Soplín Vargas (27 April
N. Rouland, S. Pierré-Caps and J. Ibid 12.
Poumarède, Droit des minorités et des 65 The authors do not link a specific sub-type 2006).
79 Interview (Iquitos, 8 September 2006).
peuples autochtones (1996) 430. of IPCCA to this second category of
51 80 Interview (Iquitos, 7 September 2006).
E.A. Smith and M. Wishnie, ‘Conservation successful IPCCAs.
66 81 Special Regime for the Administration of
and subsistence in small scale societies’ G. Borrini-Feyerabend and B. Lassen,
(2000) 29 Annual Review of Anthropology ‘Community Conserved Areas: a review of Communal Reserves 2005, art 44.
82 Ibid art 4.3.
493, 501. status & needs after Durban 2003 and
52 83 Ibid art 37.
M. Colchester, Salvaging Nature: CBD COP 7 2004. Preliminary Synthesis’
Indigenous Peoples, Protected Areas and (2008) 14.
Biodiversity Conservation, World Rainforest 67 IUCN, ‘Indigenous Conservation Territory:
Movement and Forest Peoples Programme A New Option for Governance of Protected
(2003). Areas’ (2008), <http://www.iucn.org
 Chapter 9
CHAPTER 9
Negotiating Land Tenure:
Women, Men and the Transformation
9
of Land Tenure in Solomon Islands
Rebecca Monson*

Introduction
Land issues are currently high on the agenda of national governments and donor agencies
throughout the South Pacific.1 At the centre of debates about land in the Pacific lies an issue
common to many post-colonial countries, namely, the interaction between customary and state
legal systems. In most South Pacific nations, constitutional or statutory law expressly provides that
land is governed by “custom” or “customary law”.

The roles of customary and state legal systems with respect to land tenure have been extremely
contentious among women’s groups and feminist scholars in many parts of the world. Some writers
argue that customary law discriminates against women and advocate the intervention of the state
to secure their rights to land. Others see the use of state law as an attempt to open up customary
systems to market forces, a process that has generally had adverse implications for women. There
are also major disagreements over a range of conceptual and normative issues, including the nature
of men’s and women’s interests under customary law, the ways in which customary and state legal
systems actually operate, and the effect of economic, political and legal transformations on those
systems.2

Compared to other geographic regions, the gendered aspects of land tenure, or natural resource
management more broadly, have received only very limited attention in the South Pacific.3 In the
Melanesian4 nation of Solomon Islands, very little of the research on land has been undertaken by
women, or focused on differences in men’s and women’s perspectives and experiences of land
tenure.5 There is, therefore, a general lack of accessible information on women’s experiences of
customary and state laws governing land, or on the ways in which women might be empowered
within these systems.

This chapter examines the interaction of customary tenure systems with the state legal system in
two sites in Solomon Islands, one rural and one peri-urban.6 Part 1 provides a brief overview of land 169
tenure in Solomon Islands, which is characterized by the overlapping arenas of the state, kastom,7
and Christianity. Parts 2 and 3 examine land tenure arrangements in the two field sites, focusing in
particular on transformations in customary systems occurring since colonization, and the impact of

* Rebecca Monson is a geographer and lawyer with a background in both research and practice, focusing on disaster
management, natural resource management, and aid and development. She is particularly interested in the
interaction between customary and state-based systems of justice in the postcolonial countries of the southwest
Pacific. Rebecca is currently a doctoral candidate and Associate Lecturer in the ANU College of Law at the Australian
National University in Canberra. Correspondence can be directed to [email protected]. This author wishes to
thank the Solomon Islands Government for permission to conduct this research, and the people of Kakabona and the
Bareke Peninsula for their generous support. The fieldwork was supported by the Australian Federation University of
Women Georgina Sweet Fellowship (2008) and a Fieldwork Funding Grant from the Australian National University
(ANU) College of Law. Some of the work on Kakabona has appeared in R Monson, ‘Women, State Law and Land in Peri-
Urban Settlements on Guadalcanal, Solomon Islands’ (2010) 4(3) World Bank Justice for the Poor Briefing Note. The
views in this chapter are the author’s own and do not necessarily reflect the views of any of the organisations
associated with the author.
 those transformations on women. The first case study focuses on the renegotiation of traditional
leadership institutions on the rural Bareke Peninsula, in central Marovo Lagoon, through the arenas
of the church and state. It shows how during the colonial era, missionaries and colonial
administrators recognized some segments of the local polity and disregarded others, with
implications that continue today. The second case study examines some of the ways in which
kastom and the state legal system interact in Kakabona, a peri-urban area on the outskirts of the
capital of Honiara, on north Guadalcanal. The state legal system requires that landholding groups be
represented by a small number of individuals. In practice, this has concentrated control over lands
in the hands of a small group of male leaders who have the customary authority to discuss land
matters inside a public arena. The interaction of kastom and the state legal system has therefore
enabled the transformation of customary “rights to speak” into effective ownership. The concluding
section makes some general observations about the interaction of custom and the state, and the
ways in which women may be empowered within these systems.

1. Land tenure in Solomon Islands: Kastom, church and state

Solomon Islands is a scattered archipelago of over 900 mountainous islands and low-lying coral
atolls in the South Pacific Ocean. The population is extremely diverse, with some 500,000 people
speaking about 90 indigenous languages. Around 10 percent of the country’s population live in
Honiara, the capital, which is located on the largest island, Guadalcanal. The majority of the
population lives in small, highly dispersed settlements scattered across the country and is engaged
in subsistence agriculture and fishing. Customary land is the dominant form of land tenure, with
more than 80 percent of land held according to customs that vary from place to place. Landlessness
is virtually unknown, but the recognition of rights to land by the state legal system and the
distribution of financial benefits associated with these rights are a source of significant concern for
many women and men.

1.1 State legal recognition of customary tenure

Under the Constitution of Solomon Islands 1978, only “Solomon Islanders” may hold a perpetual
interest in land.9 The manner of holding, occupying, using, enjoying and disposing of customary land
is determined by “current customary usage” [LTA, s 239]. This is defined in a circular manner as the
practice of Solomon Islanders relating to the matter in question, at the time when that question
arises, regardless of whether that usage has existed from time immemorial or for any lesser period
[LTA s 2(1)].9 “Customary law” is also recognized as a general source of law, and the Constitution
provides that the rules of customary law prevailing in an area of the Solomon Islands are applicable
to that area, subject only to the Constitution and the statutes of Parliament.10 These definitions
acknowledge that Solomon Islands kastom is neither static nor “unimaginably ancient”, but is
dynamic and will continue to develop and form part of the legal system.
170
Only a very small percentage of customary land has been registered.11 When there is registration, it
usually occurs under the Land and Titles Act 1996 [Cap 133]. This provides for group ownership of
land by means of appointment of a maximum of five trustees, who are listed on a register.12

Disputes over customary land in Solomon Islands must be submitted to the local chiefs for
adjudication before the matter can be referred to the courts.13 Parties must file a certificate showing
that this has occurred before seeking the judgment of a local court.14 Local Courts are constituted
“in accordance with the law or customs of Islanders of the area in which the court is to have
jurisdiction”, or alternatively, by the Chief Justice “if he shall think fit”.15 Decisions of the Local Courts
may be appealed to the Customary Land Appeal Court (CLAC), whose members are appointed by
the Chief Justice. Both of these courts apply customary law. There is a right of further appeal to the
High Court on a question of state law or procedure, but not customary law.16 The Local Courts and
CLAC lie at the heart of the intersection of kastom and the state legal system, yet sittings of these
courts are often irregular due to a lack of financial resources.17 Furthermore, with very few
 Chapter 9
exceptions, the members sitting on these courts, and the parties before them, are chiefs and male
elders. Women appear only occasionally as parties or witnesses, and even more rarely as members.

1.2 Kastom and customary tenure

In this chapter, the terms “custom” and “customary law” are used interchangeably, and are
subsumed within the Solomon Islands Pijin term kastom, which is generally used to refer to local
norms and practices.

Kastom varies throughout Solomon Islands, not only from island to island, but even between
villages.18 Any generalization must therefore be treated with immense caution. Nevertheless, some
very general observations can be made.

As is the case elsewhere in Melanesia and throughout the South Pacific, land is not merely an economic
asset for Solomon Islanders, but has spiritual, political and social significance. Land is vested in
exogamous kin-based groups whose lineage may be traced to an original settler through the mother,
the father, or both.19 Autochthons are often said to have a stronger claim to participate in decision-
making and dispute-resolution regarding land than do migrants, including those who have married into
a land-owning group. Membership in a kin-based group is often cumulative, so an individual may be
able to trace ancestral ties to many groups, provided he or she has the necessary knowledge.20

Kin groups tend to hold relatively large territories, within which there are smaller divisions associated
with smaller sub-groupings. For example, land used for gardens is often associated with particular
individuals or families, as are hamlets within a larger village. Historically, these territories and their
subdivisions were defined less by boundaries and more by ‘focal points’ marked by rivers, rocks, trees
and sacred sites.21 Land is governed by the histories of the ancestors, preserved in these sites, as well
as in genealogies, stories and the landscapes they belong to.22 When used in relation to land, kastom
often refers to these genealogies, stories and places, as well as the production and reproduction of the
knowledge and practices that preserve them. Access to knowledge about certain aspects of kastom
may be passed on in a controlled and deliberate manner. For example, information about genealogies
may be given to particular people rather than readily available to everyone.

Solomon Islands kastom is often perceived to be contrary to women’s rights.23 In the few cases in
which a conflict between kastom and the human rights provisions in the Constitution has arisen, the
courts have tended to reinforce this view.24 While Solomon Islands kastom can undoubtedly be
mobilized in ways that are discriminatory towards women, attention also needs to be paid to ways
in which many Solomon Islanders are working to promote a more inclusive kastom within their own
communities. As Bronwen Douglas points out, “Melanesians, like people everywhere, exercise actual
or potential agency”, even if that agency is “circumscribed by gender, age, status, circumstance, and
aptitude.”25
171
1.3 Christianity and the churches
Christianity and the different churches play a significant role in circumscribing actual and potential
agency and probably have a greater influence on people’s lives than the state.26 Growing numbers
of missionaries began to arrive in Solomon Islands towards the end of the nineteenth century, and
their activities gathered pace after the establishment of the British Solomon Islands Protectorate in
1893. Today, the vast majority of Solomon Islanders identify themselves as belonging to one of the
Christian churches.27 The churches have a strong influence on everyday life, not only through their
respective doctrines, but also by promoting distinctive denominational identities.28 In Solomon
Islands, as in other parts of Melanesia, Christian theologies and church women’s groups play an
important role in women’s training, leadership, and networking.29

The role of Christianity in influencing land tenure is also increasingly recognized.30 Christian
missionaries had a fundamental impact on landholding and settlement patterns when they
encouraged converts to move from the hills down to the coast to live in much larger settlements
 surrounding the mission stations.31 Today, variations in doctrines promote different attitudes
towards both cash and natural resources. For example, the different doctrines of the three
denominations in Marovo Lagoon promote different patterns in material production and cash
reliance. The majority of the population in Marovo belongs to the Seventh-Day Adventist Church,
which is characterized by a more individualistic approach to both salvation and economic activity,
and prohibits consumption of betelnut, alcohol, shellfish, crustaceans and pigs. By contrast, there is
a greater emphasis on cooperative economic activity in villages belonging to the United Church. The
Christian Fellowship Church, an indigenous church, has a significant emphasis on communalism
and cooperative work.32 These three denominations have also all been involved in various
sustainable forestry initiatives.33

Christianity and kastom are sometimes juxtaposed by Solomon Islanders, but they are also regularly
interwoven to produce new “ethno-theologies”,34 which may have an impact on land tenure. In
Marovo Lagoon, Christian concepts, metaphors and symbols are regularly mobilized in making
claims to land before chiefs and courts, and church pastors may also be involved in resolving land
disputes. Christianity is not mobilized in court disputes in the same manner on north Guadalcanal,
but as the case study will show, it nevertheless plays a significant role in land matters. Christianity
therefore overlaps and interweaves with both kastom and the state, and land tenure is characterized
by multiple, overlapping arenas, norms and institutions emanating from the state, kastom and
Christianity, as they vary from place to place.

2. Case 1: The strategic simplification of authority on the Bareke Peninsula

The Bareke Peninsula is a large peninsula on north-east Vangunu Island, in central Marovo Lagoon.35
Most land in this area is customary land, although some of the islands surrounding the peninsula are
registered. The Bareke Peninsula is the most densely populated part of the island, and there is a
notable absence of inland settlement. However, this was not always the case. In pre-colonial times,
there was a strong distinction between people living in the hills of Vangunu, and those on the small
islands dotting the lagoon, referred to as “bush” and “coastal” people, respectively.36 This old
settlement pattern gradually disappeared at the turn of the century as Methodist and Seventh Day
Adventist missionaries encouraged their converts to move down to the coastal areas to live in much
larger settlements. While aspects of the bush-coastal distinction began to break down during the
20th century, it remains an important distinction in terms of language, social organization, territorial
holdings and ecological orientation. Most villages on the Bareke Peninsula are populated by bush
people who are United Church adherents, whereas most villages on the surrounding islands are
populated by coastal people and Seventh Day Adventists. As noted above, the theologies of these
churches promote different patterns of subsistence production and consumption as well as cash
reliance.37 The language of the bush people is Bareke, while that of the coastal people is Marovo. This
172 chapter adopts Bareke terminology and focuses on the land tenure regimes of the bush people.

For the Bareke people, the landscape is divided into named and marked pepesa (territories) that
belong to particular kokolo, which comprise a number of families that claim descent, through both
men and women, from the first settler of the land. Since the 1990s, many of these kokolo have entered
into logging agreements with transnational logging companies; and discussions about logging
provide a sharp reminder that the kokolo may never be considered a homogenous group. Many
Bareke women and men are angry about the extent to which control over decision-making processes
and royalties are concentrated in the hands of a small number of men, to the exclusion of most other
members of the landowning group. They argue that these practices are at odds with kastom, in
particular the emphasis on sharing, group control over land, and matrifocal values. For instance, at a
meeting with a group of Bareke women from a small village, one elderly woman angrily remarked:

Every good thing that was practised before, has gone. Lots of people have come
inside, and jealousy and hatred have changed every good thing! The love of money has
 Chapter 9
changed every good thing. Love of money, hatred, jealousy have come inside! You
white men have spoiled every good thing!38

While statements like this could be interpreted as an appeal to a more secure past that never
existed, an understanding of the transformation of key socio-political institutions since the colonial
period suggests that such complaints cannot be so easily dismissed.

2.1 Bangara, siama and vuluvulu: Pre-colonial sociopolitical institutions

The concept of vuluvulu was introduced to the author in one of her first “lessons” on Bareke kastom,
by a man in his late 30s, who is very knowledgable in kastom:

The number three is very important in Bareke culture. In the past, we had three
important people: the vuluvulu; the chief or bangara; and the warrior or priest, who
was called the siama. The role of the bangara was to talk about land, to fight, and to
perform witchcraft. These are the chief’s responsibilities. The vuluvulu was/is a
woman. The bangara must consult with the vuluvulu - the chief must consult the
woman. The chief is a spokesperson, and there are two senior people to help him, one
man and one woman. My grandmother taught me about this. The siama were Bareke
warriors. They did lots of things. They performed the priestly activities.

This description of bush leadership highlights the role of the matrifocal vuluvulu in the bush polity.
The term vuluvulu has multiple meanings and exists in both Bareke and Marovo languages. One
meaning refers to the people who constitute the blood core of a kokolo, with an emphasis on
matrilineal descent or cumulative matrilineal filiation.39 Bird explains that the term symbolizes the
intertwining of relationships within the kokolo. The term derives from vulu, a pandanus-type shrub:
“…a vulu standing by itself is easy to uproot, but if it grows as a whole – which by very nature should
be the case – it is extremely difficult to be uprooted.”40 The term vuluvulu is also used to refer to
particular women of high standing. In this sense, the term is often translated as meaning “the oldest
female”, “the first-born girl”, “a princess”, and “a queen”. It also has many other meanings, as one
respondent explained, “Lots of words go back to vuluvulu, almost everything relates to vuluvulu.”

The second institution of leadership named in the above quote is that of the bangara, which is often
translated in Pijin as jif’ (chief). The bangara had many roles, including: holding the important ancestral
valuables and keeping genealogical information; regulating land use; amassing and redistributing
wealth through the organization of feasts; organizing warfare; and providing a link to the divine “other”.41
The role was based on both male primogeniture and ability. A man who demonstrated exceptional
fighting skills or extraordinary leadership skills, or who built up and distributed wealth, might become a
bangara. Equally, if a young man lacked these qualities, the current chiefs and elders of the family would
bypass him and support a more capable uncle, brother or cousin.42
173
During fieldwork, Bareke people often explained that, “the vuluvulu and bangara cannot be
separated, they belong together”, and Hviding has observed that while cumulative matrifiliation
predominates in the formation of the vuluvulu, political leadership is determined by cumulative
patrifiliation.43 The vuluvulu and bangara appear to be one of the many examples of the ways in
which bush and coastal people of Marovo Lagoon “make sides” or dualistic divisions in which both
halves are complementary.44

The third role mentioned — the siama — was tied to pre-Christian religious beliefs and pre-colonial
warfare, and could be described as both a leader in warfare and a priest. Warfare and conflict
occupied a dominant position in the cultural organization of pre-colonial Marovo and throughout the
western Solomon Islands.45 Both the bush and coastal people engaged in headhunting, slavery and
cannibalism, which were closely linked to ritual cycles and ceremonial occasions.46 The siama
occupied a critical role in pre-colonial warfare and was responsible for conducting divination rituals
to “see” the likely outcome of an intended raiding or headhunting expedition.47 The position was
 rarely inherited, but was usually chosen from among those of matrilineal descent or could include
also a great warrior from elsewhere.

The institutionalized positions of vuluvulu, bangara and siama, together with the pepesa, formed the
foundation of the kokolo. Liligeto writes of the coastal people that, “without these important
elements, the [kokolo] could not exist.”48 Bareke genealogies are characterized by both male and
female links, and the kokolo appears to have been personified by both male and female leaders,
chosen through both male and female primogeniture.49 This suggests a degree of exchange and
complementarity between gendered domains of social organization and authority. There were
similar exchanges and a degree of complementarity between the people of the bush and the people
of the sea, who were integrated into networks of warfare, alliance and exchange with each other and
with people of other islands. These constructs of complementarity were fluid and flexible,50 and with
the establishment of trading with Europeans, the BSIP and missionization, some people were better
equipped than others to negotiate a new complementarity that would be more to their interests.

2.2 Trade, colonization and missionization: Selective recognition of sociopolitical institutions

The coastal people on the islands around the Bareke Peninsula were increasingly involved in trading
as the 19th century progressed, which must have led to a number of significant changes in local
social organization and tenure systems. Bush people lived in less accessible areas and were
probably not involved in trading to the extent that the coastal people were, but they would
nevertheless have been affected by these changes.

Coastal groups had access to the resources that traders desired and in return received iron goods,
including axes. These were useful not only for gardening and building canoes, but also for warfare.51
Leaders of the coastal groups that controlled these resources went to great lengths to monopolize
trade with Europeans,52 an agenda that would have fitted neatly with the desire of the traders to
identify and deal with a fixed, presumably male, leader. This enabled the control over trade to be
concentrated in the hands of a few men. As McKinnon observes, “[t]he big man role was created out
of indigenous culture and ambition, but trade with Europeans made this possible.”53

Trading not only altered the scale of leadership, but also led to the development of a new relationship
between the people and the natural resources that sustained them. Bennett notes that old products
were now directed to commercial ends, while previously unused products were gathered and sold.54
As resources acquired a commercial value, they were commodified, and individuals within a kokolo
sought to control access to products that had previously been protected for the benefit of the group.
These trends gathered pace as the Protectorate era commenced.

When the British established the BSIP in 1893, one of the first tasks for the administration was to
pacify the infamous headhunters of Marovo Lagoon.55 Pacification meant the loss of power by siama
174 and bangara, as the Government enforced laws against the acquisition of firearms and suppressed
practices related to headhunting. In doing so, the Government destroyed the link between the
bangara’s organization of productive activities and ceremonial activities, and undermined the basis
of their power.56 It also weakened the role of the siama, tied to warfare and associated religious
beliefs. The Christian missions had a similar effect, by discouraging, apparently successfully, the
continuation of traditional feasting, dancing and ceremonial activities.57

While undermining many of the traditional avenues to spiritual and material authority, the missions
and the BSIP, in particular its conceptions of land tenure, also provided new arenas in which to
negotiate the terms of production, authority and obligation. The opportunities that the missions
offered were predominantly available to men, in particular aspiring or existing bangara, who often
became leaders within the church. For example, Ishmael Ngatu, a young man from a chiefly line,
introduced Methodism to the Bareke Peninsula in 1912. The Methodist Mission (which later became
the United Church) also used the term bangara to translate “lord”, thereby incorporating the
institution of bangara into the liturgies and songs of the church.58 The concept of the siama and
 Chapter 9
vuluvulu were not translated into these new institutions and practices in this manner. Given the view
of headhunting and other ritual practices taken by the missionaries and the BSIP, it is likely that the
role of the siama was even actively undermined. Indeed, today the role appears to have been
consigned to history.59

The newly created infrastructure of the BSIP, in particular its conceptions of land, also provided new
ways for the bangara to retain their authority by obtaining and distributing wealth. A number of the
bangara of central Marovo Lagoon were able to persuade district officers to construct fixed cement
markers in strategic locations, which then enabled the boundaries of the pepesa to be surveyed and
registered.60 At the same time, the different entitlements of people within the kokolo were changing.
Bareke people often stress that historically the bangara did not “own” land but “looked after” it.61 The
aim of the registration of boundaries was to strengthen the capacity to “look after” the land in
negotiations with white planters, traders and administrators. In many instances, the foreigners’
perceptions of property and authority enabled male leaders to claim rights wholesale. Ishmael
Ngatu, for example, not only held a new position of leadership within the Methodist Mission, but was
also able to use his chiefly status to sell land to the government.62 The state legal system therefore
facilitated a strategic simplification of the tenure system, by enabling the bangara to consolidate
their control over the land in the eyes of the state and in practice.

The introduction of government headmen in 1914 consolidated the role of the bangara even further.
Ishmael Ngatu was appointed District Headman for Marovo, and due to his success in negotiating all
three arenas of church, state and kastom, he became known as the chief over a large area, from
Nggatokae to Ramata.63 The Protectorate’s ambitions of indirect rule made it convenient to perceive
kastom as collapsing political authority and customary tenure into one figure, the bangara.64 It also
strengthened the power of the bangara in a context where the customary polity was being
renegotiated and traditional leaders were struggling to secure their continued relevance.

None of this is to suggest that other members of the kokolo were unable to participate in the ongoing
renegotiation of land tenure. Women on the Bareke Peninsula undoubtedly contributed to the
process of adaptation, contestation and recognition of claims to land in a variety of ways. There are,
for example, some women who were recognized as experts on kastom.65 There are also rare
examples of women playing a significant role in the negotiation of land transactions and appearing
in court hearings.66 However, the records of Lands Commissions and courts, like the liturgies of the
churches, make no reference to the role of vuluvulu despite regularly referring to the role of the
bangara.67 The failure of the state legal system to accord any recognition to the role of vuluvulu
contributed to the marginalization of the connection between women and the land, at least within
the arena of the state. This had implications for the role of women, which continue today.

2.3 Bangara and entrepreneurs: Logging and authority today

Logging has become a major issue on the Bareke Peninsula since the 1990s, and occurs at 175
intersection of the state and customary legal systems. The Forest Resources and Timber Utilisation
Act 1978 [Cap 40] (‘FRTU Act’)68 provides that any person who is interested in logging customary
land must apply to the Commissioner of Forests Resources for consent to negotiate with the
relevant government authorities and the owners of the land. The Provincial Government then holds
a timber rights hearing, at which it determines a range of issues, including whether the people who
propose to grant the timber rights represent all those who are entitled to grant such rights and how
any profits will be shared. This information is recorded in a certificate of customary ownership,
known as “Form Two”. The individuals listed in Form Two are those entitled to negotiate with the
logging company. There is a right of appeal to the Customary Land Appeal Court, the decision of
which is final and conclusive, subject only to the original jurisdiction of the High Court.69

In practice, negotiations between logging companies and landowners have often been underway for
a long time before the issue of a Form Two. While forested land is usually subject to multiple and
overlapping rights, logging companies have focused their efforts on negotiating with individuals that
 are influential within the landowning group, and proponents of logging. These individuals are nearly
always men, some of whom are bangara and other male leaders, and some of whom are younger,
entrepreneurial individuals with a relatively high level of formal education.70 These younger men are
often of influential descent, but have also become powerful through their understanding of the
logging licence procedures and their ability to persuade elderly, sometimes illiterate bangara to
promote logging.

Proponents of logging are widely believed by other landowners to receive financial and other forms
of support from the logging companies when appearing in timber rights hearings and court appeals.
Many landowners also believe that companies are able to influence the outcome of timber rights
hearings and court appeals through the provision of funding to the members of the fora that
determine their claims. For example, while the High Court has emphasized the government’s
obligation to provide the funds necessary for the Customary Land Appeal Court to operate, it has also
reluctantly allowed the parties in some matters to share the costs of having their case dealt with.71
This contributes to the perception that companies are able to influence the outcome of hearings.

According to principles of the state legal system and kastom, the representatives listed in Form Two
are obliged to share royalties with other members of the landowning group. However, it is widely
acknowledged that there is a general lack of transparency and accountability as to how this occurs.
Landowners regularly complain that they do not know when royalties are distributed or how much
money they are entitled to.72 Furthermore, licence negotiations and royalty distributions often occur
in urban centers that are located hundreds of kilometres away from the villages in which landowners
live, thus involving expensive and time-consuming travel. This makes it extremely difficult for
landowners to access information and hold signatories accountable. Thus, as was the case with
traders, missionaries and the BSIP administrators, logging companies wish to identify and engage
with individuals rather than the entire kokolo, and this is facilitated by the requirements of the state
legal system. This enables a small number of individuals to carve out a “big man” status and
strengthen their power base within their tribe by obtaining and distributing logging revenue.73

While many men are marginalized by these processes, women as a social group are particularly
likely to be excluded. When the author asked women how their kokolo made decisions about logging,
a typical response was to laugh sarcastically, or to declare with either anger or resignation: “I don’t
know, they don’t tell us anything”. Women probably have a greater role in negotiations than these
quotes suggest; for example, they often exert significant influence through informal conversations
within the household. However, forestry records and court records support their perceptions of
exclusion from highly public fora of decision-making. In the logging files reviewed, each file for
Marovo Lagoon had a Form II which listed between one and 15 names of men as those “lawfully able
and entitled to grant timber rights”. Of the dozens of court records reviewed, none listed women as
parties or witnesses in timber rights hearings or court appeals. Some women report that they have
176 attempted to attend hearings and have waited on the beach for hours for this purpose, only to be
told when a canoe arrives that “there’s only room for men, there’s no room for any women”. Women’s
names are absent from the official documents and agreements produced by the state legal system.
This confirms and constructs women’s role in decision-making as marginal, at least within the arena
of the state; while simultaneously reinforcing the dominance of a small number of men in decision-
making for the entire landowning group.

The predominance of male leaders within formal decision-making fora and the absence of women
are often explained by reference to kastom. In particular, Bareke people often refer to the idea that
only bangara or other elders can be responsible for formalizing decisions, and they are inevitably
men. This view of kastom is also contested, however. During a meeting with a large group of Bareke
women, one senior woman explained angrily:

…When it comes to logging, we’re victims, the men dominate us, we’re oppressed! […]
This is because traditionally, women could not talk. It was a sign of respect. The men
 Chapter 9
must talk about everything. So today, women are not allowed to talk. If a woman talks,
the axe will come! (The woman then sat down and the other women laughed).

This elderly woman was simultaneously describing and contesting a common statement of kastom,
which has become entrenched by the state legal system and in the practices of logging companies.
Her passionate outburst was received with enthusiastic laughter from most, if not all, women in the
meeting. This serves as a reminder that communities are not merely “bound” by kastom, but also
produce it. For example, while many Bareke men and women explain the absence of women from
decision-making by reference to the idea that “women cannot talk”, they also criticize these
practices and contrast them with the concept of vuluvulu.

The concept of vuluvulu is an extremely complicated one linguistically and conceptually. In Pijin, it
may be used to refer to an individual woman, a group of women, or the “blood core” of the tribe. This
may indicate problems of translation across languages and cultures, particularly as the author
speaks Solomon Islands Pijin but does not speak any local languages. However, several Bareke
people have also suggested that the concept of vuluvulu is changing or is not as well understood as
it once was.

Whatever the explanation for the lack of clarity, it is clear that the concept of vuluvulu has not been
incorporated into, and reified by, the arenas of the church and state to the extent that the concept of
the bangara has been. The fact that Bareke people can clearly and succinctly explain the role of
bangara in Pijin, but are unable to do so for the role of vuluvulu may not tell us anything about their
historical roles. It does, however, tell us something about the ways in which some segments of the
customary bush polity, and not others, are being reified through the state legal system.

The concentration of control over logging in the hands of a small number of male leaders and
entrepreneurs, and the exclusion of most women therefore needs to be understood as not merely the
product of current practices or a flawed legislative framework, but as emerging from history.
Missionaries and colonial administrators may not have intended to “rewrite” kastom, but by empowering
a certain segment of the bush polity and disregarding others, political authority and control over land
have become concentrated in the hands of the bangara. Bareke people themselves, particularly
customary leaders, have often had an interest in this “essentialization” of kastom.74 The strategic
simplification of kastom continues today, with logging companies and the courts treating the bangara as
the most legitimate representatives of the population as well as the kastoms regarding land.75

3. Case 2: Consolidation of control over land in peri-urban Kakabona

In this case study, Kakabona refers to a series of peri-urban villages strung out along the coastline
and the Tandai Highway as it runs west from Honiara, between White River and Poha River. 177
Historically, land in this area was divided into large territories, each associated with one of a number
of matrilineal totemic tribes. Prior to colonisation, the population lived in small, isolated hamlets in
the interior, and the coastline was generally unpopulated since it was regularly visited by
headhunting parties from the western Solomons and neighbouring Savo Island.76

Today, however, Kakabona is densely populated. The bulk of the population is located relatively close
to the coastline, in the narrow strip of flat land between the beach and the foothills, which rise almost
immediately from the sea and are covered in grassland. On the eastern side, close to the town
boundary, numerous parcels of land have been registered under the Land and Titles Act. These
parcels are registered in the names of a small number of male leaders who are representatives of the
landowning tribe. Land around the Kongulai water source, which provides most of Honiara’s water
supply, has been registered in a similar manner. Most of the land further west is divided into large
blocks associated with particular tribes. Within these blocks there may be smaller parcels that have
been registered by, or are associated with, particular families.
 In Kakabona, as on the Bareke Peninsula, a male is usually appointed as the spokesperson for the
family and kin group on all land-related issues. These spokespersons are often described, in Pijin,
as having the “ability to talk”. The idea of being “able to talk” about land is important across
Guadalcanal, and during the colonial period, land deals were often between foreigners and men
who had the ability to read, speak and write some English.77 The “ability to talk” about land
depends partly on an individual’s level of education and skill in managing land relationships within
the landowning group, as well as with outsiders. Since women often have less access to education
than do men, they are less likely to possess the skills necessary to negotiate the state legal
system and manage land transactions. Further, according to some Guadalcanal people, custom
dictates that “women no save tok” (women should not/cannot talk) about land. People in
Kakabona often explain that women must “stand behind” the men when it comes to speaking
about land and dealing with land in the public arena. This norm is often explained by reference to
the role of men as warriors and protectors of women.78 Today, these concepts are being
translated into the state legal system in a manner that turns the customary “right to speak” about
land into effective control over land.

3.1 Hu nao save tok?79 Urbanization and the development of Kakabona

Prior to World War II, the population of Honiara and its surrounding areas was sparse. However,
development on this part of Guadalcanal increased during the war when the United States forces
developed an airfield and other infrastructure. At the end of the war, the capital of Solomon Islands
was relocated from Tulagi in the Nggela group to Honiara, which further concentrated economic
development in the area and drew migrants to Honiara and the surrounding region.80 Urbanization
gathered pace in the 1960s, and indigenous villages on the outskirts of Honiara grew as Guadalcanal
people relocated from more remote areas. Migrants from other islands settled on government land
under Temporary Occupation Licences, but by the 1980s, these settlements were beginning to spill
over from town land onto customary land.81

Today, much of the land on the western side of Kakabona is claimed by one particular tribe, who traces
its claim to those who originally settled and cleared the land. There have been a series of transactions
through which some of the land has been divided up and acquired by other landholding groups.82 Land
transactions such as these often involve cash and are increasingly commercialized, but they are also
rooted in customary practice and have historical precedents. Most involve feasting or tsupu — the
ceremonial exchange of gifts, particularly food. The maintenance of claims to land depends on these
feasts and ceremonies being remembered through oral histories and tutungu (genealogies).83

During the 1980s and 1990s, a number of disputes concerning land in west Kakabona came before the
chiefs and courts. These disputes were often triggered by attempts to register blocks under the Land and
Titles Act, and usually concerned the boundaries and “ownership” of the land.84 Historically, land tenure
on Guadalcanal was characterised by a complex web of nested and overlapping interests in land, with
178 particular tribes living in close proximity to one another and intermarrying. However the requirements of
the Land and Titles Act meant that land acquisition officers, chiefs and courts are now required to identify
which of these groups “own” the land. Other groups are often described as “living under” the “owners”. In
some cases, the land was later registered under the Land and Titles Act and in the name of a maximum
of five “duly authorized representatives” of the landholding group, who are joint owners on a statutory
trust.85 These representatives are, with few exceptions, the individuals that appeared before land
acquisition officers, chiefs and courts on behalf of the successful tribe; in the vast majority of cases, they
are male leaders. Thus, the individuals who have the authority to speak about land within the arenas
established by the state are able to consolidate that authority through registration.

It is a principle of both kastom and the state legal system that the trustees of land consult with the
other landowners before dealing in the land.86 There is evidence, however, that trustees have often
failed to fulfil this obligation. Land in Kakabona has often been sold to migrants from other areas, as
well as to local landowners who wish to establish new hamlets or gardens. Many of these sales have
been made by trustees, although other members of landowning groups have also sold land. These
 Chapter 9
transactions are often illegitimate in the eyes of many landowners, because deals are often struck
by individuals in exchange for cash, without adequate consultation of other members of the
landholding group and without distributing the proceeds of sale.87 As a result, land transactions are
often highly controversial and a significant source of conflict.

While women are rarely listed as land trustees and are largely absent from records of public
hearings, they nevertheless play a role in determining access to and control over land. There is much
that occurs beyond the purview of the state. Women influence land transactions and court disputes
through informal conversations, particularly with their husbands, brothers and uncles.88 Many of the
women consulted in Kakabona believed that they were more likely to be consulted in land matters if
they had extensive knowledge of kastom. For example, Ruth Maetala reports of a recent instance in
which a woman’s knowledge of kastom and genealogy appeared to be influential in preventing the
sale of land:

A businessman in Honiara tried to buy the Kongulae89 water source. He used his
mother, who is from Guadalcanal, to pay each of the landowners US$50,000 to
transfer to him their rights to the water source – which supplies water to the Honiara
township. Payments were made to all the men who, for the transaction, were deemed
principal landowners but when a particular woman’s uncle’s turn came, he turned to
his niece for a decision. This was her response:

“If you sell my land right, you have sold my great, great grandmother, my great
grandmother, my grandmother, my mother and me to this businessman. If you
respect my ancestors who are your ancestors also, then you will not sell my right to
Kongulae water source.”

This woman’s words were influential in the final decision: the Kongulae water source
was not sold to the businessman.90

This woman appears to have successfully drawn on kastom, in particular her knowledge of tutungu and
the idea of land being passed through women, in order to persuade her uncle not to sell the land.
Information about certain aspects of kastom appears to be more closely guarded in Kakabona than on
the Bareke Peninsula, and some information may only be handed down to men.91 Nevertheless, there
are also many aspects of kastom that may be learned by women. In 2009, the author, together with the
Landowners Advocacy and Legal Support Unit in the Public Solicitors Office, held a participatory legal
literacy workshop on natural resource management in Kakabona.92 During the workshop, women
openly discussed the fact that they are not as knowledgeable of tutungu (genealogy) as their mothers
and grandmothers were. They traced this to a number of factors, including involvement both in the
subsistence and cash economies, as well as in activities run by donors, non-government organizations
and churches. These activities limit the ability of many women to engage in the time-consuming task of 179
learning about kastom.93 The women acknowledged that this contributes to the likelihood that it will be
men, rather than women, who speak in public fora, as it is often men who have the knowledge of kastom
necessary to make a case in court hearings. One of the outcomes of these discussions at the workshop
was a resolution by the women to take active steps to learn more about tutungu.

However, even if women have extensive knowledge of tutungu and other aspects of kastom, their
participation in land matters may be constrained by the consolidation of the customary role of male
leaders within the realm of the state legal system. Many women report that they find out about the
details of a land transaction or dispute only after male leaders have reached a decision.94 If such
decisions have been entrenched in signed agreements or in court decisions, it may be difficult to
challenge them due to state legal norms and to many people’s hesitation to challenge leaders in formal
settings such as court appeals. All of this contributes to a trend whereby the notion “women no save
tok” limits the role of women within the sphere of the state legal system and similarly, the traditional role
of tribal elders is transformed in a manner that strengthens their formal control over land.
 3.2 Distribution of financial benefits from natural resources
Many of the residents of Kakabona are members of landowning groups that are involved in logging,
and their experiences of the decision-making processes and the distribution of financial benefits are
similar to those of the people on the Bareke Peninsula.95 The distribution of benefits from other
resource uses is similarly problematic. The Kongulai catchment, more commonly known as the
“Kongulai water source”, is a case in point.

The Kongulai water source lies to the west of Honiara and provides about 70 percent of the city’s
water supply.96 Land in this area has been divided into parcels and registered in the names of
trustees, all of whom appear to be members of a relatively small group of male leaders. As with
logging on the Bareke Peninsula, the role of traditional “big men” or chiefs has carried over into the
cash economy, which is important for negotiations and in the signing of agreements providing
access to the Kongulai water source. The men who are listed as leaders on official documents and
agreements are also those who receive royalties when they are distributed. Under both the state
legal system and kastom, they are obliged to share these benefits with other members of the
landowning group. However, as is the case with logging, there is a general lack of transparency and
accountability as to how this occurs. Landowners complain that they do not know when royalties are
distributed or how much money they are entitled to. Most women need to be vigilant if they want to
receive a share of royalties associated with either logging or the Kongulai water source. News that a
payment will be made is often passed by word of mouth. As a result, women may travel into Honiara
and spend several days sitting outside the office buildings where payments are made. They report
that it is necessary for them to be there when their male relatives emerge with money; otherwise,
“they will just drink it and eat it.”97

The inequitable distribution of financial benefits is related to inequality in decision-making. Male

leaders have been registered as the trustees and therefore assume control of negotiations with
Solomon Islands Water Authority, and women do not appear to be adequately consulted in decision-
making or informed of royalty distributions.98 This is a common feature of resource-dependent
industries in Solomon Islands.99 Initial research by the author also suggests, however, that some
landowning groups may have more transparent and inclusive methods of decision-making, dispute-
resolution and the distribution of financial benefits than others. Further research is required to
determine whether this is the case, and if so, why.

3.3 Hao nao olketa meri save tok:100 The mobilization of kastom and Christianity
From 1998 to 2003, Solomon Islands suffered from a violent conflict that is now known as “the
Tensions”, which resulted in hundreds of deaths, the displacement of thousands of people, and the
destruction of the country’s narrow economic base. The primary protagonists were militant groups
formed by the indigenous inhabitants of Guadalcanal and those who originally came from the
neighbouring island of Malaita. While the causes of the conflict are immensely complex,101 they
180 include social conflicts arising from the use of land, which remain largely unaddressed today.

The beginning of the Tensions are usually traced to late 1998, when the Guadalcanal people petitioned
the Government calling for the return of land “stolen from the people” and demanding compensation
for the use of Honiara as the national capital. A Guadalcanal militia group then embarked upon a
deliberate campaign of harassment and evicted thousands of settlers from Guadalcanal to their islands
of origin. This campaign was directed primarily at Malaitan settlers on the Guadalcanal Plains and in the
vicinity of Honiara. A Malaitan militant group emerged in response, and Honiara fell under its control,
while Guadalcanal militants controlled areas outside the town boundary.102 The fighting therefore was
concentrated in peri-urban areas around the town boundary. Residents of these areas fled as their
homes were burnt and looted, their vehicles seized, and their physical safety threatened.

While there were many and complex underlying drivers of the conflict, the centrality of land issues is
underscored by the Guadalcanal militants’ slogan, “Land is Our Mother, Land is Our Life, Land is Our
Future”. The land-related drivers of the Tensions included social conflicts arising from the expansion
 Chapter 9
of migrant settlements onto customary land; the destructive impacts of development; and the
inequitable distribution of revenue from activities such as logging and mining.103 Land dealings
underlying development and migrant settlement were called into question due to the exclusion of
most landowners from decision-making and the distribution of financial benefits. A common
argument was that many land dealings were illegitimate because they had been undertaken without
consulting women, who are the “real landowners” in Guadalcanal’s matrilineal systems. Many
Guadalcanal youth felt that they had been dispossessed of their rightful inheritance, and while much
of their anger was directed at settlers, there is also anecdotal evidence of reprisals against senior
Guadalcanal men who had been involved in land dealings.104

When violence escalated in mid-2000, the volunteer Women for Peace Group was formed with the aim
of enabling women to contribute to the peace process. Their activities and strategies drew on customary
practice, cultural values (particularly the idea of “women as mothers”), and principles drawn from
Christianity. For example, in some cultures in Solomon Islands, women may intervene in conflict both
physically and verbally, and Women for Peace members drew on this approach to physically stand
between warring parties. Women also visited the camps of militants, where women and militants
(predominantly young men) shared food, prayed together, and discussed issues such as the
consequences of the violence for women and children. Women for Peace also held fora, conferences and
meetings with police officers, parliamentarians and foreign diplomatic missions. Prayers and Bible
readings were always an important part of these meetings.105 It is noteworthy that the strategies adopted
by Women for Peace in affirming women’s roles in dispute resolution and peace-building drew on kastom
and Christianity, rather than the state legal system or international human rights standards.

In the years since the Tensions, similar strategies appear to have been adopted by Guadalcanal
landowners seeking to expand the role of women in land matters. For example, one Guadalcanal
woman believed that the role of women has expanded since the Tensions, because many people
have realized that it is a “sin” to exclude them from land matters:

God made Adam and Eve, and it is a Christian principle that women should be
included in decision-making regarding land. It is a sin to not include women. When we
sin, there will be consequences…and now we’ve seen what those consequences are.

4. Strengthening women’s land rights

The case studies demonstrate that land tenure in Solomon Islands is characterized by a highly
complex and dynamic interplay of kastom, Christianity, and state laws and institutions that varies
from place to place. While this institutional and normative plurality provides ample scope for the
renegotiation of tenure, the case studies clearly show that some people are better equipped than
others to influence the direction of those renegotiations.106 181

The dynamism of customary tenure means that contemporary practice needs to be understood in
its historical context. The Bareke Peninsula case study reveals the usefulness of such an approach.
Logging is controversial among the people of the Bareke Peninsula, with both men and women
contrasting current practices with the matrifocal concept of vuluvulu. A historical perspective
suggests that this cannot be easily dismissed as a romanticisation of kastom. It is not surprising that
the role of bangara can be explained with ease, having been reified through the state legal system
and the missions. The difficulty that Bareke people have in explaining the concept of vuluvulu
suggests that the concept has not been reified through the state legal system to the same extent.
Contemporary practice must therefore be understood not merely as the product of a flawed
legislative framework, but also as embedded in history.

Recognizing that customary tenure is dynamic and negotiable requires moving beyond simplistic
assessments of kastom as discriminatory towards women and that their interests would be better
 served by the intervention of the state. The records produced by the state legal system generally
record the names of a small number of male leaders, thus solidifying their formal control over land.
However this practice is often contested by the commonly-heard statement that “women are the
real owners of land on Guadalcanal.”

Interpretations of kastom in Kakabona today suggest that some people have greater authority than
others to “talk about” land. While there is a need for further research, it is possible that the
informality of customary systems in the past provided all landowners with a variety of means to
influence decision-making and even resist the decisions of those with the recognized authority to
“speak about” land. However, urbanization and increased competition for land has led to elite
attempts to capture the value of land, which are facilitated by greater resort to the state legal
system. This has narrowed the scope for participation in decision-making, concentrating formal
control over land in the hands of a small number of people.

Neither kastom nor the state legal system provide adequate mechanisms for ensuring transparency
and accountability in relation to land matters. On the Bareke Peninsula and in Kakabona, both men
and women regularly complain of a general lack of knowledge about land dealings and the
distribution of financial benefits such as royalties. There is a need for increased attention to issues
of access to information. For example, in both fieldsites, transparency and accountability in the
distribution of royalties might be improved if they were highly public and advance notice were given
to all landowners pending royalty payments.

Formal rights to land and the distribution of cash benefits associated with them are obviously just
one part of the much larger picture of access to land and other natural resources. In the context of
Solomon Islands, however, where landlessness is relatively unknown, it is the issue of formal rights
to land that is of most concern to women. It is in the intersection of kastom with the state that many
landowners find themselves losing out, and a small number of people are able to strengthen their
role within land tenure systems.

While attention must be paid to the intersection of kastom with the state, the case of Kakabona
demonstrates that women may be more likely to draw on informal systems based in kastom and
Christianity in affirming their roles in relation to land, dispute resolution and the distribution of
financial benefits. In the context of Solomon Islands, where land reform is on the agenda of the
national government and donors, there is an urgent need for further research into the operation of
local norms and practices, which arguably play a more significant role in determining women’s
rights to land.

Furthermore, while it is now axiomatic to state that participatory methodologies are critical to the
empowerment of women, issues of methodology have not received a great deal of attention in
182 research into customary systems.107 The participatory workshop held in Kakabona enabled all of the
workshop participants (the author included) to pursue the shared goal of empowering Solomon
Islander women through the provision of information about the state legal system. At the same time,
the author learned a great deal about the operation of kastom and Christianity, and the local women
participants identified the active pursuit of knowledge about tutungu as critical to their
empowerment within kastom.108

Finally, it must be noted that the case studies have tended to focus on the experiences of the
“average” woman, with less attention paid to other cross-cutting axes of difference such as age,
marital status, and status as an autochthon or migrant. This is partly because those with the most
vulnerable rights to land, such as migrant women, are also those who have the least authority to
speak publicly about land matters. This was often noticeable in meetings, during which migrant
women were quiet, and in a small number of instances even left the meeting. It is likely that these
women felt unable to express their views on land matters within public meetings. This again
 Chapter 9
highlights the importance of long-term, ethnographic research methodologies that provide scope
for the inclusion of a greater range of voices and experiences, and pay increased attention to the
operation of customary systems of tenure on the ground.

footnotes 9 Land and Titles Act 1996 [Cap 113], s 239. 24 In each of Remisio Pusi v James Leni and
1 See for example Australian Agency for 10 Ibid ss 76, 144(1) and Schedule 3. Others [1997] HCSI 218/1995; Minister for
International Development (AusAID), 11 In 2002, only 12 percent of land had been Provincial Government v Guadalcanal
Making Land Work, Volume 1 and 2 (2008). registered: Pacific Island Forum Secretariat Provincial Assembly [1997] SBCA 1; CA-
2 For a review of these debates see A Session 3 Paper: Land Issues (Paper CAC 003 of 1997 and Tanavalu and
Whitehead and D. Tsikata, ‘Policy prepared for the Forum Economic Ministers Tanavalu v Tanavalu and Solomon Islands
Discourses on Women’s Land Rights in Meeting, Port Vila, Vanuatu, 2002). National Provident Fund [1998] SBHC 4;
Sub-Saharan Africa: the Implications of the 12 The Customary Land Records Act 1994 HC-CC 185 of 1995, the court held in obiter
Return to the Customary’ (2003) 3(1-2) [Cap 132] establishes an alternative that the human right at issue would not
Journal of Agrarian Change 67-112; S system for recording interests in land, but prevail over customary law.
Razavi, ‘Liberalisation and the Debates on this has not been widely used. 25 See for example B. Douglas, ‘Christian
Women’s Access to Land’ (2007) 28(8) 13 Local Courts Act 1996 [Cap 19], s 12(1) Custom and the Church as Structure in
Third World Quarterly 1479-1500. 14 Constitution of Solomon Islands 1978, “Weak States” in Melanesia’ (Paper
3 Notable exceptions include: C Bolabola et above n 8, s 257. presented at Civil Society, Religion and
al, Land Rights of Pacific Women (1986); R. 15 Local Courts Act 1996, above n 13, s 3. Global Governance: Paradigms of Power
Monson, Land Rights of Melanesian 16 Constitution of Solomon Islands 1978, and Persuasion, Canberra, September
Women: Women’s Rights to Customary above n 9, s 257. See further Buga v Ganifiri 2005, 2).
Land in Fiji and Vanuatu, Honours Thesis, [1982] SILR 119; Teika v Maui [1985/86] 26 T.T. Kabutaulaka, Pacific Islander
Monash University (2004); E. Huffer (ed), SILR 91. Stakeholder Participation in Development:
Land and Women: the Matrilineal Factor: 17 D. Paterson ‘Some thoughts about Solomon Islands, Pacific Islands
the Cases of the Republic of Marshall customary land’ (2001) 5 Journal of South Discussion Paper Series No. 8, report
Islands, Solomon Islands and Vanuatu Pacific Law <http://www.paclii.org/ commissioned by World Bank (1998).
(2008); and G. Nelson, Review of the journals/fJSPL/vol05/7.shtml> at 14 27 Ibid; A. Makim, ‘State, Community
Gender Dimensions of Land-Based Conflict August 2010. Development and Melanesia: The North
in the Pacific, Consultancy Report 18 J. Corrin Care, ‘Customary Law in Conflict: New Georgia Sustainable Social Forestry
commissioned by the Pacific Islands Status of Customary Law and Introduced and Rural Development Project’ State,
Forum Secretariat (2008). Law in Post-Colonial Solomon Islands’ Society and Governance in Melanesia
4 The South Pacific (or Oceania) is often (2001) 21(2) University of Queensland Law Working Paper (2002).
understood as being composed of the Journal 167. 28 E. Hviding, Guardians of Marovo Lagoon:
subregions of Melanesia, Polynesia and 19 People on Isabel, Makira, Guadalcanal (with Practice, Place and Politics in Maritime
Micronesia. the exception of Marau) and Nggela follow Melanesia (1996).
5 See, however, R. Maetala, ‘Matrilineal Land matrilineal descent systems, while Malaita 29 B. Douglas, ‘Introduction: Hearing
Tenure Systems in Solomon Islands: the and most of the western islands (including Melanesian Women’ (2000) 51
cases of Guadalcanal, Makira and Isabel Vangunu Island) are inhabited by Development Bulletin 39; D. McDougall
Provinces’ in E. Huffer (ed) Land and ambilineal descent societies. ‘Fellowship and Citizenship as Models of
Women: the Matrilineal Factor: the Cases of 20 See, for example, B. Burt, ‘Land in Kwara’ae National Community: United Church
the Republic of Marshall Islands, Solomon and Development in the Solomon Islands’ Women’s Fellowship in Ranongga,
Islands and Vanuatu (2008) 35. (1994) 64(4) Oceania 317; M.W. Scott, ‘Neither Solomon Islands’ (2003) 74(1/2) Oceania.
6 Approximately seven months were spent in “New Melanesian History” nor “New 30 See for example M.W. Scott, The Severed
each field-site during 2008-2009. This Melanesian Ethnography”: Recovering Snake: Matrilineages, Making Place and a
fieldwork was supported by the Australian Emplaced Matrilineages in Southeast Melanesian Christianity in southeast
Federation University of Women Georgina Solomon Islands’ (2007) 77(3) Oceania 337. Solomon Islands (2007); D. McDougall, The
Sweet Fellowship (2008) and a Fieldwork 21 I C Heath, Land Policy in Solomon Islands Shifting Ground of Moral Community:
183
Funding Grant from the ANU College of Law. (1979). Christianity, Property and Place in
Some of the work on Kakabona has 22 See also Burt, above n 20; E. Hviding, Ranongga (Solomon Islands), PhD Thesis,
appeared in R Monson, ‘Women, State Law Guardians of Marovo Lagoon: Practice, The University of Chicago (2004); C. Bird,
and Land in Peri-Urban Settlements on Place and Politics in Maritime Melanesia Pepesa – The Household of Life: Theological
Guadalcanal, Solomon Islands’ (2010) 4(3) (1996); E. Hviding, ‘Contested Rainforests, Exploration of Land in the Context of
World Bank Justice for the Poor Briefing Note. NGOs, and Projects of Desire in Solomon Change in Solomon Islands, PhD Thesis,
7 “Tradition” or “custom” in Solomon Islands Islands’ (2003) 55(4) International Social Charles Sturt University (2008).
Pijin (as well as the Papua New Guinean Tok Science Journal 539. 31 Brookfield and Hart, Melanesia: a
Pisin and Vanuatu Bislama). 23 See for example Brown and Corrin Care, Geographical Interpretation of an Island
8 Constitution of Solomon Islands 1978, ‘More on Democratic Fundamentals in World (1971).
s.110. “Solomon Islanders” are persons Solomon Islands: Minister for Provincial 32 Hviding, above n 29. See also K. Fa’anunu,
born in Solomon Islands and who have two Government v Guadalcanal Provincial Christian Fellowship Church Reforestation:
grandparents who were members of a Assembly’ (2001) 32(3) Victoria University A Change in Customary Land Tenure in the
group, tribe or line indigenous to Solomon of Wellington Law Review 653; J. Corrin Solomon Islands? Unpublished Report.
Islands: Constitution of Solomon Islands Care, ‘Customary law and women’s rights 33 Ibid; Bird, above n 30; Kabutaulaka, above n 26.
1978, s 113; Land and Titles Act 1996 [Cap in Solomon Islands’ (2000) 51 34 Strathern and Stewart, ‘Series Editors’
113], s 2. Development Bulletin 14. Preface’ in M.W. Scott, The Severed Snake:
 Matrilineages, Making Place and a Hocart, ‘Warfare in Eddystone in Solomon point of Marovo Lagoon, and Ramata is in
Melanesian Christianity in Southeast Islands’ (1931) 61 The Journal of the the far north.
Solomon Islands (2007). Anthropological Institute of Great Britain 64 Christian Lund makes this point in relation
35 Land and marine tenure systems in Marovo and Ireland 301. to Ghana: C Lund, Local Politics and the
have been the subject of extensive and 47 Bird, above n 30. Dynamics of Property in Africa (2008).
detailed analysis by social anthropologist 48 Liligeto, above n 46, 50. 65 For example, Lilitgeto writes of Talivuru,
Edvard Hviding: see, in particular E. 49 See Hviding, ‘Indigenous Essentialism? who was a recognized source of his
Hviding, Guardians, above n 28; E. Hviding, “Simplifying” Customary Land Ownership (coastal) tribe’s history and knowledge:
‘Indigenous Essentialism? “Simplifying” in New Georgia, Solomon Islands’ (1993) W.G. Liligeto, Babata, Our Land, Our Tribe,
Customary Land Ownership in New 149(4) Bijdragen tot de taal – land – en Our People: a Historical Account and
Georgia, Solomon Islands’ (1993) 149(4) volkenkunde 802. Cultural Materials of Butubutu Babata,
Bijdragen tot de taal – land – en 50 Ibid. Marovo, Institute of Pacific Studies, the
volkenkunde 802; Hviding and Bayliss- 51 Ibid; J. McKinnon, ‘Tomahawks, turtles and University of the South Pacific (2006).
Smith, Islands of Rainforest: Agroforestry, traders: a reconstruction in the circular 66 For example, Francis Niutali, who married
Logging and Eco-tourism in Solomon causation of warfare in the New Georgia the well-known white trader Norman
Islands (2000); Hviding, Contested Group’ (1975) 45 Oceania 215. Wheatley and facilitated his purchase of
rainforests, above n 22; E. Hviding, 52 A. Cheyne, Trading Voyages of Andrew Cheyne, land. Niutali was the only woman to appear
‘Disentangling the Butubutu of New Georgia: 1841-44 (1971); McKinnon, above n 51. before the 1923 Phillips Land Commission:
Cognatic Kinship in Thought and Action’ in 53 McKinnon, above n 51, 296. Carter G Miriam Achi is also remembered
Hoëm and Roalkvam (eds), Oceanic 54 Bennett, above n 42. as a “strong woman who fought about
Socialities and Cultural Forms Ethnographies 55 Ibid; Hviding, above n 28. land”: Patson Dioni v Miriam Achi, Marovo
of Experience (2002) 71; and E. Hviding, 56 See Bennett, above n 42. Hviding, above n Local Court 7/85.
‘Contextual Flexibility: Present Status and 28; Hocart, writing about Simbo, refers to a 67 See, for example, Majoria v Jino [2003]
Future of Customary Marine Tenure in chief who said, “No one is mighty now, they SBHC 29; HC-CC 261 of 2002 (8 April
Solomon Islands’ (1998) Ocean and Coastal are all alike, they all have money, they cannot 2003), in which P.J. Brown discusses in
Management 40, 253-269. go head-hunting, they all ‘stop nothing’”: A.M. some detail Ngatu’s role and the legal
36 E. Hviding, above n 28. The terms “coastal” Hocart, ‘Cult of the Dead on Eddystone’ status of the records he produced.
or “coastal” people are often used to refer (1922) Journal of the Royal Anthropological 68 See also Bennett, above n 42; J. Bennett,
to the maritime-oriented segments of a Institute 52, 71-112, 259-305. Pacific Forest: a History of Resource Control
regional population. “Coastal-bush” or 57 Bird, above n 30. The arrival of Christian and Contest in Solomon Islands c. 1800-
“coastal-inland” dichotomies, as well as missionaries in Marovo appears to have 1997 (2000); M Wairiu, ‘History of the
associated fish-for-taro barter, also existed been associated with a rapid decline of old Forestry Industry in Solomon Islands’
in Melanesia. rituals and ceremonial activities. This may (2007) 42(2) Journal of Pacific History 233;
37 Ibid. have been due to the authority and T.T. Kabutaulaka ‘Rumble in the Jungle:
38 Translated from Solomon Islands Pijin. reputation of Ishmael Ngatu, who Land, Culture and (un)sustainable logging
39 Ibid; E. Hviding, ‘Disentangling the participated in the last headhunting raid in in Solomon Islands’ in A. Hooper (ed),
Butubutu of New Georgia: Cognatic Kinship 1908, after which he converted to Culture and sustainable development in the
in Thought and Action’ in Hoëm and Methodism and established the first Pacific (2000), 88; T.T. Kabutaulaka, Paths
Roalkvam (eds), Oceanic Socialities and mission in Marovo in 1914. in the Jungle: Landowners, Deforestation
Cultural Forms Ethnographies of 58 The Methodist Mission produced a number and Forest Degradation in Solomon Islands
Experience (2002) 71. of books of hymns, catechisms, prayers (n.d.) World Rainforest Movement
40 Bird, above n 30. and liturgies in the Roviana language, some <http://www.wrm.org.uy/deforestation/O
41 Ibid; Hviding, above n 28. of which continue to be used today by the ceania/Solomon.html> at 15 August 2010.
42 Interviews, see also Bird, above n 30. See United Church of Solomon Islands. 69 Forestry Resource and Timber Utilisation
further B.T. Somerville, ‘Ethnographical 59 As far as the author is aware, there are no Act 1978 [Cap 40], Part III.
Notes in New Georgia, Solomon Islands’, recognized siamas on the Bareke Peninsula 70 Author’s own observations, and also those of
(1897) 26, The Journal of the or Marovo Lagoon today. Hviding and Hviding and Bayliss-Smith, above n 35. There
Anthropological Institute of Great Britain Bayliss-Smith assert that the role has are also similarities with the practices
184 and Islands 357; J.A. Bennett, Wealth of the completely disappeared: Hviding and regarding mining: Hviding, above n 49.
Solomons: a History of a Pacific Bayliss-Smith, above n 35. 71 See, for example, Clerk to Western
Archipelago, 1800-1978 (1987). 60 Ibid. Customary Land Appeal Court v Attorney-
43 Hviding, above n 39. 61 See, for example, the language used by the General [2003] SBHC 106; HC-CC 070 of
44 Ibid; Hviding, above n 28. bangara Sagende before the Phillips 2003 (6 June 2003).
45 Hviding, above n 28; D. Miller, ‘An Commission: Report of the Lands 72 See also Wairiu, above n 68. Similar
Organizational Approach to Exchange Commission: Native Claim No. 26 observations have been made elsewhere in
Media: an Example from the Western Respecting Land at Telina Island, Marovo Solomon Islands: R. Scheyvens and L.
Solomons’ (1978) 11 Mankind 288. Lagoon, Claimed by the Australasian Lagisa, ‘Women, Disempowerment and
46 See Bird, above n 30; W.G. Liligeto, Babata, Conference Association Ltd, 18 June 1924. Resistance: an Analysis of Logging and
our Land, Our Tribe, Our People: A Historical 62 Bennett, above n 42. Mining Activities in the Pacific’ (1998) 19(1)
Account and Cultural Materials of Butubutu 63 Evidence given by Sagende to the Phillips Singapore Journal of Tropical Geography 51.
Babata, Marovo (2006); J.F. Goldie ‘The Commission: Report of the Lands 73 See also Bennett, above n 42; Bennett, above
People of New Georgia, their Manners and Commission: Native Claim No. 26 n 68; Wairiu, above n 68; Bird, above n 30.
Customs and Religious Beliefs’ (1909) 22 Respecting Land at Telina Island, Marovo 74 See also Edvard Hviding regarding the
Proceedings of the Royal Geographical Lagoon, claimed by the Australasian simplification of genealogies in
Society 23; Hviding, above n 28; Conference Association Ltd, 18 June 1924. negotiations with a mining company:
Somerville, above n 42. See also A.M. Gatukai is the island at the southernmost Hviding, above n 49.
 Chapter 9
75 Cf, in relation to Ghana: Lund, above n 65. 89 Kongulae is also spelled Kongulai. Many of 99 See also Fletcher, Hickie and Webb, Risky
76 M.A. Bathgate, Matriliny and Coconut the names of places in Solomon Islands Business, Jubilee Australia (2009).
Palms (1993). have a number of accepted spellings. 100 Solomon Islands Pijin for “how women can
77 Dr. Gordon Nanau (personal 90 See Maetala, above n 5 (citing a personal / may talk”.
communication). See also T.T. Kabutaulaka, interview). 101 See in particular M. Allen, Greed and

Footprints in the Tasimauri sea: a biography of 91 According to many informants in Grievance in the Conflict in Solomon
Domeniko Alebua (2002). Kakabona, this information has Islands, 1998-2003, PhD Thesis, Australian
78 Ruth Maetala has made similar traditionally been taught to boys by their National University (2007).
observations in relation to the roles of men maternal uncles. 102 See Fitzpatrick and Monson, ‘Balancing Rights

and women in decision-making on Isabel: 92 See further R. Monson, ‘Identity and Ethics, and Norms; Property Programming in East
Maetala, above n 5, 41. or, Trying to Avoid being a Patronising White Timor, the Solomon Islands, and Bougainville’
79 Solomon Islands Pijin for “Who can / may Lawyer’ (2009) 1 Ex Plus Ultra 87. The views in S. Leckie, Housing, Land and Property Rights
talk?” expressed here are those of the author, and in Post-Conflict United Nations and Other
80 M. Bellam, ‘The Colonial City: Honiara, A do not represent those of any other Peace Operations (2009), 103.
Pacific Islands Case Study’ (1970) Pacific individuals or organisations involved in the 103 See for example, Wairiu, above n 68;

Viewpoint 66. workshop. Liloqula and Pollard, Understanding

81 D. Storey, ‘The Peri-Urban Pacific: from 93 Personal communication with Paula Conflict in Solomon Islands: A Practical
Exclusive to Inclusive Cities’ (2003) 44(3) Arahuri 10 March 2010. Means to Peacemaking’ State, Society and
Asia Pacific Viewpoint 259. 94 See Maetala, above n 5. Governance in Melanesia Discussion Paper
82 It is often unclear whether these 95 See also D. Gay (ed), Solomon Islands 00/7 (2000); Fitzpatrick and Monson,
transactions have been made on behalf of Diagnostic Trade Integration Study, 2009 above n 102.
the tribe, on behalf of a family, or on a one- Report Ministry of Foreign Affairs and Trade 104 Confidential interviews in Honiara and

to-one basis. Details of some of these (2009); and Wairiu, above n 68. surrounding areas, 2008 and 2009.
transactions can be found in Kurilau and 96 J.A. Tuhaika, ‘State-owned Enterprises and 105 See for example Liloqula and Pollard, above

Usa v Tada and Ors CMC-LA 1 of 1988 the Principal-Agent Problems: a Case Study n 103.
(CD/CLAC/6/88) (7 September 1988), of Solomon Islands Water Authority’ (2007) 106 See also P.E. Peters, ‘Inequality and Social

and Tada v Usa [1996] SBHC 7; HC-CC 207 22(2) Pacific Economic Bulletin 131, 132. Conflict Over Land in Africa’ (2004) 4(3)
of 1994 (12 February 1996). 97 Similar observations have been made in Journal of Agrarian Change 269.
83 See also Maetala, above n 5. relation to the distribution of logging 107 Susan Hirsch has observed that, while legal
84 The language of the Land and Titles Act royalties: see D. Gay (ed), Solomon Islands anthropologists have paid a great deal of
1996 [Cap 133] refers to “ownership”: see Diagnostic Trade Integration Study, Ministry attention to gender relations, there has been
Land and Titles Act 1996 [Cap 133] Part V. of Foreign Affairs and External Trade very little engagement with the debates over
85 Land and Titles Act 1996 [Cap 133] s 195(1). (2009); Scheyvens and Lagisa, above n 72. feminist method that have shaped the study
86 See, for example, the then Chief Justice 98 B. Powell et al, Updated Report on Initial of gender in other disciplines: S.F. Hirsch,
Muria’s comments in Kasa v Biku [2004] Consultations for Kongulai Catchment, ‘Feminist Participatory Research on Legal
SBHC 62; HC-CC 126 of 1999 (14 January Guadalcanal Province, Solomon Islands (2007) Consciousness’ in Starr and Goodale (eds),
2000). <http://www.watercentre.org/resources/public Practising Ethnography in Law: New
87 Confidential interviews with various ations/reports/Powell et al -2007-_Initial Dialogues, Enduring Methods’ (2002), 13.
individuals in Kakabona, 2008 and 2009. Consultations for Kongulai Catchment - 108 See also Monson, above n 92.
88 See Maetala, above n 5. Solomon Is..pdf> at 10 June 2010.

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