Non-state justice and security (NSJS) systems deal with the majority of disputes in developing countries and are an important complement to formal state justice. What is the best way for donors and governments to engage with them? What are the policy options that increase security and justice for the poor and marginalised?
This study from the Department for International Development (DFID) explores this issue drawing on examples from Africa, Asia and Latin America. NSJS systems include a range of traditional, customary, religious and informal mechanisms that deal with security issues or disputes and whose relation to the State varies greatly. Some community-based systems can be isolated from the State while others can be set up by non-government organisations (NGOs) or the State outside the formal judicial system.
Intervention in NSJS systems should aim at identifying and increasing their strengths such as low cost, accessibility, speed and cultural relevance, while correcting the negative aspects such as corruption, lack of accountability and human rights abuses. Before any policy implementation it is essential to conduct an institutional analysis that includes:
- Identification of key stakeholders including users of both the formal and the informal sectors, people who control the latter and those engaged in the former
- Encouragement of a dialogue between the different stakeholders to overcome resistance to reform
- Multi-disciplinary research with the active participation of local communities
- Dispelling of assumptions on NSJS systems that can hold true in certain contexts but do not have a solid basis in others
- Identification of the links between the NSJS systems and the State
- Assessment of the NSJS systems’ compliance with human rights standards.
When choosing from the different policy options, it is important to consider the benefits that the reforms would have on the poor in terms of access to justice and safety. The policy options for intervention by the State and civil society organisations (CSOs) are:
- State: Incorporation of informal systems into lower levels of the formal judicial system and codification of customary law
- State: Recognition of minority rights through encouragement of the use of informal systems by particular groups and creation of State accountability institutions such as Human Rights Commissions
- State: Regulation, innovation through the creation of alternative mechanisms that draw on NSJS systems, collaboration and provision of funds
- CSOs: Direct provision of alternative NSJS systems and capacity building through training of personnel and financial resources
- CSOs: Human rights monitoring
- CSOs: Advocacy and lobbying of policy-makers and raising the publics’ awareness.
