informal justice

Colonial and apartheid policies in South Africa have had lasting – and complex – impact on indigenous customary law, and with it, on indigent people’s access to land.

“Customary law” is a general term referring to the indigenous or local customs and traditions (i.e. laws) of peoples that live communally. Under colonial rule in South Africa, customary law was given a third class status beneath western-imported British common law and Roman-Dutch civil law. Colonial rulers superficially recognized native customs, but simultaneously supplanted them with western legal concepts such as the ownership of property by a single homestead through a deed or other written entitlement. As a general rule, the colonial government acknowledged indigenous leadership structures only to the extent that it benefitted its system of indirect rule. Hence, the government drew (often with little cultural understanding) firm ethnic and geographic boundaries around tribes, instating chiefs they knew to be subservient to colonial control, and declaring that tribe members could obtain land or other resources only through these tribes and chiefs. Apartheid deepened these distortions of traditional leadership and custom, locking native people within the physical and cultural bounds of tribes and chiefs whose power had been enhanced by colonial impact.

Following the dissolution of the apartheid government in the early 90s, South Africa’s new Constitution of 1994 for the first time placed customary law on equal footing with statutory and common law, declaring it, like those other sources of law, independent and subject only to the Constitution itself. On one level, this was a critical step for the recognition of indigenous rights and traditions, finally elevating them to equal status with western-created legal rights. But a significant challenge arose: what, after all the years of distortion, was “customary law” anyway? Which customs and traditions were “true” and worthy of being elevated under the Constitution?

This challenge has faced many African countries, and many have fallen into the trap of promoting customary law simply by recognizing the traditional leadership structures, lineages, and boundaries created by colonial governments. They have also approached custom as though it is static, seeking to impose – forever more – the same chief and traditions that existed in the 19th century. The problem, of course, is that the pyramidal structure of tribal power that facilitated colonial indirect rule was not actually indigenous, for scholars have revealed that in fact tribal leadership arrangements were often quite “democratic” and flexible. Today, determining who is leader of a tribe in South Africa has very tangible impacts: land is still owned through chiefs, meaning significant potential wealth – including mineral wealth – is held in the hands of an elite and ultra-powerful few, while the least empowered in society – the rural poor, women, and youth – have limited access to rights and resources.

In South Africa, the debate over the nature of custom is being fought today between the court system and the legislature. The parliamant – perhaps influenced by powerful constituencies – has passed laws since the early 2000s solidifying the tribal boundaries and structures created by colonialism and exacerbated under apartheid. Meanwhile, the highest court, the Constitutional Court, has developed extremely forward-minded jurisprudence on the true, flexible nature of culture and “living customary law,” and has sent at least one of these bills back for redrafting. The debate presents an ongoing challenge to human rights attorneys: within the muddle of legislation and court rulings, how can customary law be used to promote the rights and livelihoods of all South Africans, as mandated by the Constitution?

The complexity of the issue is manifested in a bill signed into law by President Zuma this past July 1, called the Restitution of Land Rights Amendment Act. The Act re-opens a process under which citizens may claim back land that was expropriated from them decades ago under racially discriminatory apartheid laws. In theory the law could offer great opportunity to citizens to reclaim land and rectify the disparities in land ownership that persist along racial lines. Yet in reality the law may just provide apartheid-created chiefs the ability to claim vast swaths of territory for their own use (or lease to foreign mining companies), ostensibly in the name of their tribe.

The legislature has spoken; it is now time for the lawyers and courts to help determine whose custom and whose law will be elevated to ensure truly equitably access to land for South African rural citizens.

In the U.S., approximately one in four women will experience domestic violence in her lifetime. The statistic is similar around the world, but the legal and institutional infrastructure to adequately prevent such violence and provide sufficient redress to victims is often completely absent in many developing countries.

In rural Sierra Leone, for instance, I witnessed a woman run to the nearest police station immediately after being beaten by her husband, and with a large open wound on her head. Despite the clear evidence of assault, the police took little action to investigate the crime. In part, this was because they lacked training, capacity and even the resources to attempt to locate the accused, who had fled by then to a nearby city. Because they lack the funding and resources (including an adequate salary), police sometimes ask complainants for bribes to continue the investigation or money for travel and equipment – which means that victims are essentially funding the police, rather than the government. Clearly, cost is a huge barrier for victims who come from poor families or rural regions who live on under $2 a day. Beyond this, the police continued to entertain patriarchal beliefs and norms about keeping families together despite abuse and violence.

These are just some of the barriers faced by women in accessing justice from law enforcement in many developing countries. In addition, there is often a tremendous cultural stigma that prevents women from pursuing prosecution or leaving an abusive spouse; women who are divorced, living alone, or who have chosen to leave a relationship are often looked down upon and there is substantial social pressure to stay and bear the pain. Further, poverty is an additional barrier. In many countries, women simply may not be able to support themselves and their children if they leave their husband due to low salaries and sometimes, the traditional role of the wife in caring for the children and home.

Because of the problems with formal law enforcement, victims often turn to informal (also known as customary or traditional systems) justice systems to resolve their ‘family disputes.’ These systems, such as the shalish in Bangladesh, employ methods of mediation or arbitration to resolve a range of community disputes, including those involving family law and often domestic violence. Often, village leaders, elders, or religious leaders preside over these local councils or informal mechanisms, or make the ultimate decisions. However, these mechanisms have been frequently criticized for their flouting of international human rights law and norms, and their incorporation of patriarchal customs. These systems do regularly lead to discriminatory outcomes, such as forcing a rape victim to marry her rapist, or forcing a victim of domestic violence to continue living with her abuser. They do often condone practices such as bride sales, dowry, or forced and child marriage. Frequently, decisions also favor the more wealthy or powerful individuals in a community.

Despite this, it is important for NGOs and the international community to engage with informal justice systems because they are frequently the most affordable, accessible, easy to use, and culturally familiar methods of dispute resolution used by victims. The judgments of village elders or community leaders are often respected and valued, and contribute to a sense of social cohesion in a community. Especially in rural areas or poor urban areas, informal justice systems may be the only source of dispute resolution or ‘legal aid’ for women and girls who are victims of violence. Thus, any programs aiming to increase women’s access to justice, or to reduce violence against women, must seriously engage with and consider informal justice systems.

Many programs work to improve informal systems by, for instance, involving women leaders in the decision-making process, providing g training and support for the mediators and community leaders, codifying informal legal norms to comply with human rights laws, or ensuring some type of accountability of informal justice systems to the formal justice system. At the same time, as an excellent IDLO report, “Accessing Justice: Models, Strategies, and Best Practices on Women’s Empowerment,” describes, various approaches “risk being unsuccessful if they fail to consider the underlying reasons for which local norms do not align with international human rights standards. Some argue that these approaches do not encourage a holistic understanding of the context in which discriminatory practices are embedded, and as a result, prevent the development of comprehensive solutions” (p. 21).

The IDLO report cites a prime example: the practice of forcing rape victims to marry their rapists is often grounded on not only patriarchal attitudes but also the reality that if this marriage does not occur, the victim is likely to be ostracized by the community and may lack the ability to support herself. Beyond simply outlawing such practices, consideration must be given to methods to address the underlying economic, social and cultural reasons for their continuation. Ultimately, organizations hoping to truly improve women’s access to justice and to reduce violence against women must take a more holistic perspective, considering all the diverse needs of women and girls subject to violence, rather than simply a piecemeal approach to reforming informal systems.

Tag: informal justice

Whose Custom, Whose Law, Whose Land?

Access to justice for women and engaging informal justice mechanisms