This paper argues that, given the empirical evidence on the high level of recourse to customary law, customary legal systems are integral to development, and that both customary and state legal systems have a role to play in a functional justice sector. It sets out a framework of policy options for programmes that seek to harness the respective strengths of customary and state legal systems.
Customary legal systems deal principally with three areas of law: the law of obligations; family law; and property law and succession. These are areas in which communal conflicts frequently arise and for which an effective dispute resolution mechanism is needed. The most significant characteristic of customary dispute resolution is that it seeks to deliver restorative justice, rather than punitive sanctions, in order to achieve social reconciliation.
Legal reform that engages both the state and customary justice systems calls for a delicate balance between competing interests and among complex issues (such as governance, politics, power structures, sovereignty, cultural practices, ethnic or tribal identity, attitudes toward self-determination, and sensitivities heightened after years of underdevelopment and war). Policy options that might be used to achieve such a balance include the following:
- Codification and ascertainment of customary laws. Codification involves recording customary laws in writing, either in an informal record for use by local communities or in a statutory form for use by state courts. Ascertainment assists communities to determine their own laws but, unlike codification, the focus is on describing (not prescribing) the principles applied. Codification and ascertainment should be used primarily to bring legal certainty to discrete and otherwise esoteric areas of law, such as land ownership, where clarity may be needed for development to take place.
- Incorporation of customary fora into the state hierarchy of courts. Hybrid courts would apply customary law at first instance. On appeal, the higher courts would use assessors to determine the content of, and how to apply, the customary law. Integration could be appropriate when the customary legal system is already cooperating significantly with the state.
- Adaptation of the laws and procedures in the state legal system to accommodate customary precepts. This option attempts to harness the best features of both systems. However, it may be more suited to a common law system which is inherently able to adapt to new circumstances, and certainly only when the state and the judiciary are open to cooperating actively with customary societies.
- State monitoring of the decisions made by customary leaders using independent accountability mechanisms, such as human rights commissions. This policy option may be appropriate in cases where the state legal system is incapable of dispensing justice. However, it does not resolve jurisdictional issues, and may need to be combined with additional regulatory reforms.
- State regulation of customary legal systems. This subjects customary legal systems to state oversight on a wide range of matters, including observance of human rights standards. Regulation needs to be used with restraint, and only where intervention is strictly necessary to ensure that customary legal systems can operate.
Working with state and customary legal systems is difficult. However, this must not deter rule of law practitioners from undertaking reforms that build complementarity between the two systems. The likelihood of success can be enhanced by:
- Programming based on sound research: The research should candidly appraise matters such as the historical context of statutory and customary law; their key features; the source of funding (if any); existing or previous donor assistance (what has been tried and worked, or failed), and the incentives and disincentives for reform.
- Identification of key stakeholders, partners and potential spoilers: It is important to identify potential spoilers and trusted local leaders, both in government and in the customary system, as well as those who are not recognised leaders but hold de facto power within a community. It helps to highlight the work that will be done to strengthen both systems.
- Long-term vision and sustainability: Real structural change requires a long-term vision. Rule of law practitioners also need to ensure that reforms are sustainable. This may mean, for example, cultivating relationships with people who have roles in both the state and customary legal systems, who can carry on reform efforts by bridging the two systems.
