The Challenges Facing Non-State
Justice Systems in Southern Africa:
How do, and How Should Governments Respond?
by
Wilfried Schärf
Wilfried Schärf is based at the Institute of Criminology at the University of Cape Town.
1. Introduction: What Shapes Non-state Justice Systems?
Non-state justice systems are a reality in almost all countries all over the world, but predominantly in developing countries. Their extent, their character and their importance vary greatly depending on a wide range of factors. Among those are the nature of the state and its capacity; the diversity of the population in terms of ethnicity/race, religion, ideology, language and income. Crucially important are also the levels of urbanisation and the type of economy, the moral economy as well as commercial one.
Very important in understanding the nature and shape of non-state justice systems (NSJS hereafter) in developing countries is the process by which the state configured itself in the decolonisation period, the post-1960s. Did it continue with the policies and structures it inherited from its former colonial masters, or did it chart new directions which would be more in keeping with the indigenous culture?
The key decision for any developing state is how it configures the customary justice system in relation to the formal, 'western' justice system. Does customary justice get relegated or revived? The second most important period which determined the nature of non-state justice is the post-cold-war era. In Africa it is characterised by moves towards democratisation after 1990 in which 34 of the (then) 47 states made some moves in that direction (Bratton and van de Walle, 1997). By 1994 most of those attempts had failed for reasons that are important to non-state justice systems. For a discussion on the shape of post-1990 African states I draw insights from six Southern African countries in varying detail and depth: South Africa, Malawi, Lesotho, Zambia, Botswana and Mozambique and make references to examples elsewhere, notably India (lok adalat) Bangladesh (shalish) and the Phillipines (Barangay Justice systems).
The structure of this paper starts, Firstly with an examination of the terminology used over the last 50 years when talking about non-state justice. I try to show that it is not all semantics but that the names take on particular ideological baggage, depending on whether the form of non-state justice is pro-state or anti-state. It also depends on who is talking, a person in a liberation struggle or someone opposing that liberation. This is to contextualize what we nowadays use quite loosely, terms such as restorative justice and traditional justice.
Secondly, I will explore the different forms that non-state justice takes in the six countries under scrutiny as well as examples from India, Bangladesh, the Phillipines and Latin America. The state's responses to these phenomena will then be sketched followed by recommendations about how states, development-donors and citizens could contribute to better governance and more effective co-operation between different forms of non-states justice and the state.
Thirdly I will share some of the developments in the SA Law Commission project group on Community Dispute Resolution Structures (CDRS).
2. Making Sense of Non-state justice systems
While the term non-state justice systems, hereafter NSJS, may sound at first blush to be uncontroversial it is a field that cannot be separated from politics and history. The reason for this is, of course, that law-making and enforcing is one of the core functions of a state, and in political theory, at least the state is constituted by some spoken, written or, at worst, implicit social contract, supposedly understood by all in the country. If, however, the social contract is unclear, unfair to certain groups, if the state has limited capacity (or will) to live up to it, then the marginalised and victimised groups in the country are likely to generate systems of justice that suit their needs and express their values. Such expressions may not be benign, they may constitute a challenge to the state, or they may embarrass the state, and so the state will have to react.
Struggles ensue and these struggles are usually reflected in the names that their protagonists give their endeavors. What follows is a small flavour of the way in which authors have made sense of non-state justice.
2A: What's in a Name? Non-state Justice versus other Names
Using the term 'Non-state Justice System' does need a little scrutiny, because the field of non-state justice is one where no one theoretical approach is dominant at the moment. Each theoretical approach to the field brings with it new ways of making sense of the phenomenon, which is usually accompanied by new names in order to distinguish it from the old, or discredited names:
The field of 'informal justice'—a name not beyond dispute itself (see Santos 1992) as I will demonstrate shortly--is already littered with a range of different terms which have gradually settled in over the last 30 years. In a relatively recent edited volume, Feenan (2002: 1-13) provides a useful route-map to explain the different labelling baggage which the usual terms carry with them: Informal justice, informal criminal justice, collective justice, popular justice (which has 5 sub-types: pre-capitalist societies, exceptional justice in fascist regimes aimed at eliminating enemies, popular participation in the administration of justice in capitalist countries; state socialist regimes and revolutionary justice). Populist justice is also sometimes used to refer to vigilantism, which is itself the subject of many definitional debates (Abrahams, 2002: 25-40). Then there are the terms that describe the broader field itself: Legal dualism, legal pluralism, and its post-modern version, plurality (Santos, 1992). Each of these terms signal the different standpoint of the researchers involved in relation to the legitimacy of the state described and the relationship between the main actors in the conflict. The term 'Non-state justice' is a relatively new addition (Schärf and Nina, 2001).
The existing clutch of terms denotes a normative hierarchy of entitlement and attitude. For example, legal dualism connotes the literature in which the normative stance is taken that the law of the coloniser is the hierarchically superior set of laws, under which falls the indigenous law, which has to pass the repugnancy-test as measured by the coloniser's values, before it can be called law (van Niekerk, 2001). The term informal justice, too, does not suit every circumstance. It is like the South African term 'non-white' in racial labelling: White is the norm, non-white the marginalised and delegitimised exception. Similarly, it is with caution that one gravitates to the term 'non-state ordering' which was coined only 4 years ago (Schärf and Nina, 2001). That term was to label all ordering (a suitably vague form for doing things that have a justice-affinity) that occurred outside of the state's immediate control, whether complementary to, or in opposition to the state. Santos' post-modern term of the late 1980s--plurality-- was used to refer to a plethora of different forms of ordering both within the state and outside it, each vying for legitimacy within particular constituencies, sometimes overlapping, sometimes complementing each other, and sometimes in fierce competition with each other. Most of these were acting within the terms of state law, but others unashamedly flouting or circumventing it (Santos, 1982).
2B: What Forms Does Non-State Justice Take in Southern Africa?
The stereotypical approach to non-state justice is to assume that it is only 'done' by civilians. My research shows that much of the non-state justice in our focal countries is undertaken by state functionaries. This has its roots in the fact that the colonial state was one in which the armed forces, military and police, were there to ensure regime-security rather than citizen-security (Harris, 2000; Bratton and van de Walle, 1997, Nield (2001) for comparison with South America). That pattern had continued to a large extent into the democratic era. Zimbabwe is a good example at the moment, where ruling-party functionaries or agents take it upon themselves to fulfil a policing (or intimidation) role against anyone who does not support the ruling party, and the state condones their actions because they keep the state in power. The legal system condones that violation of law. Thus the state officials in both their official and unofficial capacities exploit the power and influence they have by getting advantage out of a range of situations. I use this example to illustrate how difficult it is to draw the line between state justice and non-state justice. Bayart, Hibou and Ellis (1998) graphically sketch the 'criminalisation of the state in Africa' with the marvellous sub-title: "from Cleptocracy to Felonious state!"
The more conventional depictions of non-state justice are:
♥ Vigilantes: Citizens who have beliefs or values which the state does not enforce or does not enforce sufficiently harshly, and they take it upon themselves to administer the enforcement at the level they deem appropriate;
♥ Customary justice forums usually run by chiefs in counsel with their (I)ndunas1 in term of pre-modern notions of statehood and local governance. These are not recognised by the state law as official forums and their decisions and subsequent enforcement actions have no force in law;
♥ Private citizens for hire for any dirty work: Mapogo a Matamaga (SA). Also taxi drivers, armed, organised and mobile, have from time to time taken on the role of the police, courts and punishment institutions when crime against poor communities has become intolerable and the state has been perceived to be unresponsive. The taxi drivers in Nyanga and Gugulethu have responded to complaints by victims of crime and have taken it upon themselves to respond on behalf of the community. They have held short hearings and then publicly flogged the suspect/s and sometimes subjected them to 'modeling': Driven down a busy street naked whilst being flogged by either the victims or the taxi drivers.
♥ Neighbourhood dispute resolution forums such as street committees, peace committees,
♥ Religious courts not recognised by the state,
♥ Non-Government Organisations: Poor women in South Africa's African communities find it difficult to access support systems in the context of patriarchal and punitive family structures. NGOs are often the only resort for them if the extended family has not helped (Moult, K, 2003).
♥ Families, extended families and particular configurations of families. There are combinations of some of these, such as where state functionaries, say the police, unofficially 'farm out' dirty work which they are not entitled to perform to civilians (Buur, 2002) Buur's paper has the lovely sub-title: "Outsourcing the Sovereign".
2C: Non-State Justice in Developing Countries in and Outside of Africa
In Mozambique, where the liberation movement followed a socialist ideology during their liberation wars, the post-liberation scenario (1992 onwards) has a curiously bifurcated informal justice system: In rural areas where Renamo is the dominant political force, chiefs (they are called regulo) courts are the main first tier of access to justice. In areas where the MPLA is stronger, remnants of the socialist people's courts are the first level of access. Both refer their cases to the district courts if they need a higher jurisdiction, where the case is heard de novo. The official status of these first tier courts is still to be clarified by the Ministry of Justice. At the moment they appear to be informal. The city manifestations of these courts in the residential areas are also informal courts, set up by individuals who have a sense of responsibility to ensure peaceful dispute resolution. They carry with them the values of the rural traditional tribunals adapted to suit the problems of urban realities (Santos, Trindad et al, 2000). There is no legislation envisaged for the city manifestations of non-state dispute resolution structures.
In India the traditional form of informal justice was the Nyaya Panchayats (customary courts). By the mid-1970s and early eighties they had all but disappeared. They were typically the courts of traditional elders and considered increasingly inappropriate in a democratic dispensation. The government sought to find processes to compensate for the drastically clogged formal state system and legislated for the Lok Adalat, people's courts. It is governed by the Legal Services Authorities Act, 39 of 1987. Their name, people's courts, is misleading because they are state-run courts presided over by retired judges and private legal practitioners. They sit exclusively on weekends and their main form of operation is a conciliation-arbitration. They are what we in South Africa would call a Med-Arb. The intention is for the cases to be processed quickly, with an emphasis on negotiated compromises. Formal legal representation is encouraged, so that the lawyers can put pressure on their clients to find a liveable compromise. The most recent research on them, conducted in 2002 in several states concludes that they suffer from the common problem when parties with different financial and intellectual means come together: The party with the higher status and resources usually wins. The cases deal with causes that predominantly affect poor people, usually issues with public utilities, such as electricity, transport, accident victims (usually pedestrians and passengers). The respected researchers, Galanter and Krishnan2 are not nearly as euphoric as the Indian government is about the successes of the Lok Adalats. Ignorant parties are pressured into accepting low pay-outs, a practice their legal representatives support in the interests of quick justice. Galanter and Krishnan argue that justice would be better served if their representatives would hold out for what the claim is worth. But this is not the reality they observed. The emphasis is more on processing a high case-count than to achieve substantive justice. This model has little relevance for South Africa.
In the Philipines, the Barangay justice system (BJS), meaning local government-linked dispute resolution tribunals, are the official vehicle for dealing with low-level disputes. They are based on traditional (customary) justice. There are about 42,000 such structures run by local government officials. They were established in 1978 and were authorised by Local Government Code of 1991 and other legislation. They are cheaper and faster than the official courts, and closer to people's traditions and values. An elected local government official conducts the proceedings. S/he is assisted by a 10-20-person "peace-seeking committee". These are informal proceedings and lawyers are banned from them. If the mediation mode fails then a three-person conciliation is convened (to explore amicable settlement) and if that fails, then arbitration takes place but parties can at any stage agree to a written settlement of the arbitration panel. The agreements are legally binding on the parties and can be enforced by the courts. However, jurisdiction is limited to residents of the same local government area, criminal matters have a limit to imprisonment of one year, and a fine of 6000 pesos (about R770). Crimes committed by government officials are not allowed in these tribunals, nor can agrarian disputes, which have a different forum. One of the main reasons for this system is to de-congest the courts. It seems to succeed in this goal by processing 279,115 cases in 1998, settling 84% of the cases. One shortcoming of the system is the personality of the Barangay Captain, and the peace-seeking committee who are the main gatekeepers to this system. Moreover, where gender comes into the dispute the male perspective dominates. An effort to increase the efficiency and legitimacy of Barangay justice is in progress on one of the islands (Panay) where an NGO has undertaken training of the local people about the law so that the have a better understanding of their options. These paralegals could be dubbed legal health care workers, trying to make sure that a higher quality of justice is dispensed to the local populations. They succeeded in placing some of their members in senior positions in government, which paved the way for greater government acceptance of reforms which minimised the clash between traditional justice and more modern rights principles. This model of NGOs assisting local communities in understanding their options regarding the law has a long history in SA through the Community-based Paralegal Organisation, an ailing alliance.
Of all the comparative examples surveyed, the Bangladesh experience comes closest to the South African township realities. Shalish, meaning community-based, informal dispute resolution conducted by influential local figures has had a typical metamorphoses to keep up with changing realities and needs. Originally the were rural tribunals presided over by men, dealing with customary law issues. Nowadays they take three different, but sometimes overlapping forms: Firstly, traditional tribunals, secondly, government administered village courts and thirdly, NGO-modified versions of shalish. The biggest concern was that the traditional processes were very conservative when it came to issues involving women, and that's where the main thrust of the reform effort concentrated on. As a way to escape such conservatism, NGOs began, in the late 1980s, to offer mediation services that provided dispute resolution that expressed the modern values of a growing number of people. Shalish offers a range of services: Arbitration, mediation or a blend of the two. In its extreme form it operates like a criminal court which inflicts trial and punishment on individuals who have not consented to its jurisdiction". According to Golub the NGO version is the most reliable and consistent one seeing that it operates in a more professionalised manner and is not a susceptible to local powerful personalities as the local government version of shalish. Women, in particular, favour the NGO version seeing that they operate within an international rights framework.3 The Local government version has come under severe criticism, firstly, because officials of local government have a lot of other duties apart from presiding over shalishes, and secondly there has been a tendency in some parts of the country for local government officials to use their power to sponsor thugs of vigilantes for party-political purposes. Thus the dilemmas of accountability and professionalism remain troubling.4 The NGO version of shalish tends to prefer practising mediation, while state and traditional versions use mainly arbitration.
In Latin America the two countries on which there is some literature about Non-state justice systems are Colombia (urban structures) and Peru (rural structures). Non-state justice systems emerge because of the political systems are driven by the Executive (presidentialism) and are highly centralised, even in the growing democratic era.5 But that centralism is often inefficient. Consequently, it does not reach the remote areas, which then experience a governance deficit and that creates the scope for grassroots organisations to take initiative in the justice field. Faundez argues that the form of governance has two negative effects on the justice system: First, it diminishes the role of the legislature and that makes the courts a weak arm of government. Constitutionalism is not high on the agenda of many Latin American countries and therefore the state almost rules by decree. The weak judiciary creates scope for non-state justice systems. Multi-culturalism also creates the potential for different cultures to sustain their ancestral customs, which, of course, include the form of governance/justice. 14 Latin-American countries recognise the constitutional rights of indigenous people. Of greater interest to this investigation are the urban versions of non-state justice, which is found in Colombia: These occur mainly in the shanty-towns, the slums: The most prominent initiative to provide justice in the slums is a state/donor experiment called Casas de Justicia: They offer multi-agency one-stop information and service delivery in the justice and related fields. In 2002 there were 21 such Casas in the major cities and towns which had handled 1.25 million cases. They offer a wide range of professionals at one location: Prosecutors, human rights officers, the national Ombudsman, police inspectors, family welfare officers, forensic medicinal services, notary services, social workers, legal aid officers, a conciliation centre, and psychologists. They deal with domestic violence, family law issues and property claims. Their major problem is financial support from local government and the lack of co-operation among the different officials based there. They claim a 90% success rate in the conflicts they mediated/managed in the few years that they are in operation. The other 10% were referred to the formal system. Criticisms are that they push conciliation at the expense of women, who feel obliged to concede and return back to their abusive homes. One important lesson coming out of Latin America is that a single-service is of little value to poor people with multiple problems. The second lesson is that unless the existing state and non-state institutions work together, little can be achieved.
3. South African Law Commission's Efforts to Create
Space for Community Dispute Resolution Structures
The SALC's Project team on Alternate Disputes Resolution, hereafter CDRS has been working on the issue for more than 5 years. In October 2004 it completed the penultimalte draft of its recommendations.
The trend of the deliberations over the years has been to isolate 4 options:
A: Leave the CDRSs alone because they are too messy, they can embarrass the justice system and may require too big a new bureaucracy to monitor and control them.
B: Incorporate them into the state system: Formalise them and authorise their incumbents to operate responsibly, establish a bureaucracy to train, manage and fund them.
C: Incorporate the best elements of CDRSs into the justice state system to improve access to justice to poor people.
D: Criminalise their excesses.
However, the final version has been as soft a legislative touch as possible: Create enabling legislation to encourage the establishment and recognition by the state of cdrs run by civilians and enable the links to the justice system for assistance in the form of training and other support. The draft legislation offers communication and referrals for CDRSs between other structures in the justice system such as courts (particularly magistrates' and Small Claims Courts and the police). Any excesses will be dealt with by means of existing laws. To this end existing state employees will be alerted to these structures and briefed about the scope of co-operation with them.
4. Conclusion
Restorative justice and traditional justice are part of the plurality of forms of ordering in all developing countries. How they are used to achieve justice that it fair, appropriate and forward thinking is the big challenge. Bandying labels around is easy and cheap. But to have such new pr re-invented concepts make a positive difference to the quality of life for the citizens of a country is a different matter.
Notes:
1 Ndunas is the Malawian term for chiefs' advisers. The South African term is Indunas.
2 Galanter, M and Krishnan, JK 2003 "Bread for the Poor": Access to Justice Via Lok Adalats in India. Paper Presented at the DFID workshop on Non-State Justice Systems, London, March 6-7.
3 Non-state Justice Systems in Bangladesh and the Phillipines: Draft paper prepared for the United Kingdom Department for International Development , January 2003, page 5.
4 Golub, op cit, p. 8.
5 Faundez, Julio, 2002: Non-State Justice Systems in Latin America. Case Studies: Peru and Colombia. Paper produced for, and delivered at the DFID Non-State Justice Systems Workshop, London, February, 2002.
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