This review looks at justice provision in four countries in the Sahel: Mali, Niger, Burkina Faso and Chad. All feature formal (state) justice systems alongside customary/religious justice, with the latter typically being seen by citizens as more accessible, cheaper and less corrupt. State justice systems in all the countries face similar challenges: corruption, resource and capacity constraints, and political interference. However, there are also significant issues with customary justice mechanisms, notably exclusion (or limited participation) of women and other marginalised
This review is based largely on grey literature, in particular studies by think tanks and international development partners. While substantial information was found about both the formal justice system and customary justice provision in Mali, far less was found about these in the other countries, with hardly any on justice provision in Chad.
Key findings of the review are as follows:
- Parallel justice systems – all countries feature the existence of both formal (state) justice systems alongside customary/traditional justice mechanisms. This reflects both the fact that the latter are long-established and accepted – they are the traditional route for obtaining justice in many societies – and the major shortcomings in state justice provision.
- Alignment between state and customary justice systems – The degree of formal alignment between different justice systems varies from country to country. In general, customary mechanisms are recognised in law for settlement of civil disputes and family cases. Responsibility for criminal justice tends to rest exclusively with the state.
- Challenges facing state justice systems – Common issues faced in the formal justice system in all countries are lack of resources and capacity, widespread corruption, political interference in the judiciary, and lack of awareness among the public about rights and legal processes. A more fundamental issue in some (notably Mali) is that the formal legal system is based on French law, and is thus alien to the local culture as well as being inaccessible because of reasons of cost, language, literacy, distance and so on.
- Features of customary/religious justice – Customary justice providers include family elders, religious leaders, tribal chiefs and other local figures of authority. Customary justice provision is convenient (all parties are located near each other), it is cheap (no court fees or travel costs incurred), and it is familiar (parties know the mediators, they speak their language and have the same culture). Customary and religious justice tend to be intertwined, with elements of Sharia (Islamic law) featuring in customary justice provision, notably settlement of land/inheritance disputes and personal (family) cases.
- Challenges facing customary justice mechanisms – Procedures in customary justice mechanisms are not always consistent with those required for ‘fair’ trials, e.g. the right of the accused to appeal decisions; harsh punishments can be imposed; there can be a lack of consistency and of accountability in customary justice provision; and enforcement can be problematic, leading to disputes resurfacing.
- Issues around inclusion in both state and customary justice provision – The literature highlights obstacles to participation of women in both the formal system and customary justice, albeit the barriers can be somewhat different: in the former, issues with access (due to distance, cost, lack of education) and in the latter, due to patriarchal norms. In both systems the exclusion of women reflects the restricted position of women
in wider society.
- Perceptions of state and customary justice – In many countries, the state justice system is seen by citizens as highly corrupt. People often expressed greater trust in traditional leaders and customary justice. A further factor leading people to favour customary over formal justice, is that the former is seen as preserving social cohesion and the latter often as destroying the social fabric.
- Legitimacy of the state – While this review focused on perceptions of the justice sector, the generally low level of public trust in formal justice systems has obvious (negative) implications for public perceptions of the state and its legitimacy.
This review highlights considerable gaps in the evidence base and the need for more research on the challenges facing formal justice systems in the four countries; the prevalence and precise nature of customary justice mechanisms; and public perceptions of both, including reasons for favouring one or the other. Information on Chad and Burkina Faso is especially limited. A more accurate and detailed understanding of justice provision would help identify approaches to strengthen justice provision, based on a pragmatic assessment of areas and scope for improvement. Clearly, given the constraints facing formal justice systems, there is a role for customary justice mechanisms, but safeguards are needed to ensure protection of human rights for all.