This major study seeks to identify how engagement with informal justice systems can build greater respect and protection for human rights. The study also examines the value of informal justice systems in offering, in certain contexts, flexible structures and processes, cost-effectiveness and outreach to grassroots communities. It considers the weaknesses and strengths of different kinds of IJS for development programming, and suggests that, above all, development partners be alert to engagement with IJS that reinforces societal or structural discrimination. The report is based on a literature review, six in-depth country case studies (qualitative and quantitative data collection was carried out in Bangladesh, Ecuador, Malawi, Niger, Papua New Guinea and Uganda), and desk studies of 12 countries.
The study distinguishes among informal justice mechanisms anchored in (i) customary and tribal/clan social structures, (ii) religious authorities, (iii) local administrative authorities, (iv) specially constituted state customary courts, and (v) community forums specially trained in conflict resolution, particularly in mediation. Types (iii) and (iv) often present a hybrid (parajudicial) model where officials of a state system apply customary norms. Nevertheless, these rough distinctions do not fully capture reality.
Governments are often likely to favour systems linked to state structures, which may offer the advantages of having administrative procedures and some infrastructure in place, of being easily reachable for large integrated programming, and of being somewhat amenable to change and regulation. In some cases, these parajudicial systems are based on voluntarism and are not always able to meet the large expectations placed on them.
Custom-based mechanisms would appear to present the advantages of sustainability and legitimacy, having stood the test of time and being solidly anchored in communities. They may, however, have difficulties in extending their reach beyond tightly knit communities that may be small and local. Changes in structures, procedures and the substantive standards applied by these bodies are likely to be adopted by the community and thus become sustainable. As with all programming, an influx of funds to such mechanisms could create dependency.
Like custom-based mechanisms, religious IJS are likely to be relatively sustainable and legitimate within their communities. They may offer outcomes that will be respected because of strongly held values, although these values may not, or only partly, accord with principles of international human rights law, and religious doctrine may be resistant to change. In some countries, there may be either a high degree of state involvement in religious affairs or the presence of large and complex organisational structures – often with close links to the state – that would make some form of centralised programming initiative possible.
NGO-based village or community mediation schemes involve NGOs assisting communities to devise new ways of solving disputes based on taught mediation schemes. These can be freer of social pressure and the interests of powerful groups in the community, but much work, outreach and time is necessary to build acceptance of such schemes among local leaders. Where this has been done sensitively and carefully, leaders have usually been supportive.
The study examines the following programming options:
- State law reform processes to enhance compliance with international human rights guarantees. The process of law reform in IJS does not differ from law reform in other areas, except that it needs to take particular account of stakeholder groups that are often far from the policy-making process.
- Selection and mandate of adjudicators. A productive area for programming is to increase transparency and equality in the selection of adjudicators. The study confirms that measures to encourage gender equality in the selection of adjudicators are critical and will strongly influence women’s preferences and access to justice.
- Education of adjudicators. The study confirmed that traditional adjudicators are often eager to attend education and training courses. Training should focus on the rights aspects of the kind of cases that adjudicators encounter. Where IJS is upholding customs or beliefs that violate human rights, a broader approach is more appropriate to address societal attitudes.
- Education of users. Strengthening legal awareness extends knowledge of rights, provides an important foundation for the community to demand the protection of those rights, and offers remedies where rights have been violated.
- Procedural regulation and self-regulation. Emphasizing international human rights standards in IJS’ procedures offers avenues for interventions.
- Accountability mechanisms: transparency, monitoring and oversight. Monitoring and oversight often require record keeping (and thus literacy) among providers and a clear structure that takes account of standards (structural, procedural and normative) against which IJS are to be assessed.
- Linkages among primary justice providers. In some situations, the linkages required are not between IJS and formal justice systems, but between different forms of IJS.
- Linkages to paralegals and legal aid providers. Programming that fosters closer relations between IJS and local legal aid providers, such as paralegals, has had some positive results. Not all IJS will allow legal aid providers to act as representatives in proceedings, but even where this is not possible, such providers can advise individuals involved in those proceedings.
- Linkages to wider development programming. The entry point for discussion of justice issues could be through health, education or livelihood issues, rather than through treating justice as an isolated sector.