Understanding the outcomes of customary justice: implications for land practitioners

by Erica Harper

The international community has traditionally concentrated its legal development activities on the reform of formal justice sector institutions: the courts, legislature, police and correctional services. As it has become clear that these approaches have been relatively unsuccessful in improving access to justice for poor and disadvantaged populations, attention has shifted to the role that customary justice systems might play in the programming of governments, international organizations and NGOs operating in development, post-conflict or post-disaster contexts. A strong argument can be put forward that, in most developing countries, the state cannot provide justice services to its entire population and it might not be the most cost-effective provider of these services. Moreover, part of the reason that customary systems exist is due to shortcomings in formal justice systems.

Sometimes these shortcomings are connected to issues of physical access or dysfunctions such as discrimination or corruption; they can also be because state justice fails to respond to the needs and social imperatives of disputants in the way that the customary system does. Such arguments have influenced the rule of law programming strategies of many organizations. A review of the current policy and programmatic landscape reveals a growing consensus that, despite some obvious challenges, excluding customary justice systems from reform strategies may not be the best approach for enhancing access to justice and protecting the rights of vulnerable groups. There is a growing appeal for strategies that aim to improve the quality of outcomes resolved at the community level by building on the positive aspects of customary systems, particularly their reach and popularity, and attempting to reform negative practices.

But while there is now greater consensus around the issue of engaging with the customary sector, programmatic guidance on how this should occur remains scant. Moreover, partnering with customary justice systems raises new and important concerns. Principally, how can customary systems be supported while at the same time ensuring that this does not equate with a recognition or formalization of rights-abrogating practices? Such concerns have arguably led to technocratic ‘fix it’ programming, such as reforming customary laws to strengthen procedural or substantive protections, or modifying the state-customary interface with a view to regulating or harmonizing the two frameworks. This is problematic because where customary norms do not align with international human rights standards, there are often complex rationales in play, touching upon issues such as culture, socio-economic factors and security. Approaches that concentrate on bringing customary systems into alignment with international norms can thus be, at best ineffective and at worst harmful.

A further concern is the gap between the proliferation of customary justice programs and the evidence and knowledge base on which such programming is grafted. There have been few comprehensive or empirically driven efforts that reflect on or evaluate the impact of past programming efforts. Nor has there been sufficient critical analysis of the objectives of customary justice programming: is the aim to support or supplement state courts, to act as a venue for a decentralization of state legal services, or to form part of a broader spectrum approach to accessing justice? One result is that development practitioners have tended to re-apply programs designed for use at the state level rather than craft activities specifically for use in customary contexts, and replicate activities perceived to have been effective elsewhere without a proper understanding of what conditions facilitated such results.

These questions promted the International Development Law Organization to conduct research into the impact of customary law programming in developing countries. This research culminated in two volumes: “Customary Justice: From Program Design to Impact Evaluation” and an edited volume: “Working with Customary Justice Systems: Post-Conflict and Fragile States”. The first volume provides guidance on the role of customary justice systems in rule of law and access to justice programming. Specifically, it aims to provoke thought among practitioners about the objectives of customary law interventions, to encourage critical assessments of the criteria on which programming decisions are made, and to provide tools to assist in gauging the impact of interventions.

The second volume showcases research conducted under the “IDLO Legal Empowerment and Customary Law Research Grants Program”. Through this program, seven bursaries were awarded to scholar-practitioners to evaluate the impact of an empowerment-based initiative involving customary justice. In each case, an outcome mapping methodology using quantitative and qualitative data collection methods was employed to answer the basic question: “How have justice outcomes changed as a result of the intervention?” This approach reflects a move away from traditional evaluation methodologies that focus on relatively easy-to-measure data such as numbers of persons trained or numbers of information resources disseminated, and then extrapolating conclusions about whether access to justice has improved, towards a direct examination of behavioral changes and outcomes. The volume aims to assist readers develop a better understanding of the relationship between customary justice and the legal empowerment of users and identify possible entry points for engaging with customary justice systems.

Several of these chapters will be relevant to the work of HLP practitioners and scholars.

Rachael Knight explores the challenge of protecting the tenure security of rural communities in Africa. She considers the experiences of three nations (Uganda, Mozambique and Liberia) that have introduced legislation facilitating ‘Community Land Titling’ – laws that make it possible for rural communities to register their lands as a single legal entity and operate as decentralized land administration and management bodies. Her analysis considers i) the type and level of support that communities require to successfully complete community land titling; and ii) how to best facilitate the protection of vulnerable groups’ land rights. Her findings suggest that it is not always the most elaborate or expensive interventions that yield the highest rate of effectiveness.

In all three nations, trained community-based paralegals assisted proved to be a low-cost and efficient way to support large numbers of communities through the land documentation processes. A further finding was that the perceived degree of external threat to community land rights, community leaders’ management abilities and and ongoing local land conflicts greatly influenced how far a community was able to progress in titling their lands. This suggests that peri-urban communities, communities with weak leadership, communities with little or no internal cohesion or a highly-transient population, communities with too much internal strife, and communities with no sense of clear threat to their lands may not be a ‘good fit’ for this kind of initiative.

Marco Lankhorst and Muriel Veldman delve into the controversial issue of rural women’s access to land in Rwanda. While such women have relatively strong statutory land rights, these entitlements have limited practical value in contexts where customary law dominates. Acknowledging that access to the formal justice system is not a realistic near-term option, they hypothesized that women would receive better outcomes if land-related disputes were resolved consistently at the village (customary) level, through mediation by a wider group of stakeholders, including representatives of a women’s interest group. The findings suggest that it may be possible to widen the scope for women’s land claims without modifying the substantive aspects of customary law, provided that such outcomes do not sit too uncomfortably with the overarching structure of the customary framework. The research presents a strong argument for working with ‘the devil you know’ with a view to short-term harm-minimization, even if this requires working with patriarchal and discriminatory norm sets.

Amrita Kapur examines the role of domestic NGOs in using statutory laws to improve women’s land tenure security in the face of gender discriminatory land and inheritance customary practices. Relying on primary research conducted in Mozambique and the United Republic of Tanzania, she provides examples of where initiatives to disseminate and use gender-sensitive laws have overcome the lack of knowledge, application and enforcement that have previously limited the effectiveness of such legislation. Importantly, in these cases women stepped out of the customary realm to find relief at courts, begging the question of what conditions are required to facilitate such departures from dominant norms and cultural expectations.

Finally, Maggi Carfield’s chapter considers the situation in post-conflict Northern and Eastern Uganda, where IDPs who have attempted to return home are now encountering land disputes. She explains that neither the formal nor the informal justice systems are adequately equipped to ensure justice; the overall national land policy is in flux, land administration institutions are under-funded, and the formal justice system is overloaded. In addition, customary dispute resolution mechanisms have been weakened. The concern is that unless fair and efficient dispute resolution mechanisms are strengthened, these land issues pose a significant threat to ensuring peaceful and lasting resettlement efforts in the region. She explores one NGO’s efforts to re-strengthen customary land management bodies and a fusion of statutory and customary regulatory mechanisms.

The basic message that can be gleaned from the case studies is that there are no easy answers when it comes to advancing empowerment objectives in the context of customary justice. Such systems are, by their nature, messy, unpredictable and political. Further, determining what types of interventions will yield an impact is contingent on a range of situation-specific factors including those not limited to justice indicators. The Namibia and Somalia case studies analyze interventions with similar objectives and methodologies, but with markedly differing levels of impact. The relatively modest achievements in Somalia can be connected to some extent to decisions that could have been made differently with the benefit of hindsight: the intervention failed to address shortcomings in the customary legal system’s relationship with the courts, as well as issues concerning dissemination and physical security.

The reforms in Namibia, by contrast, had a high level of sustained impact. But this was not necessarily because the interveners stumbled upon the ‘correct’ model, the application of which in Somalia would have resulted in a different outcome. As the analysis demonstrates, what occurred in Namibia had more to do with a coincidence of context-specific enabling factors including post-independence political momentum, regional authorities carving out their relevance through a discourse of gender equality, and individual, charismatic change agents. Clearly, these types of enabling conditions cannot be manufactured, which leaves questions about the criteria on which intervention decisions should be based.

A few caveats should be highlighted. The purpose of the books is not to offer prescriptive advice on how interventions should be structured, but rather, to provide the reader with insight into the variety of responses that have been trialed in other contexts, to draw attention to possible pitfalls and advantages, and to highlight certain enabling conditions. But what works in a given country context is situation-specific and contingent upon a variety of factors, including inter alia, social norms, the presence and strength of a rule of law culture, socio-economic realities, and national and regional geopolitics. In order to make strategic decisions on what is likely to yield sustainable and positive impact, development practitioners need to possess in-depth knowledge of the target country, its people and its customary legal systems, as well as the theories and practicalities pertaining to legal development and customary justice programming.

These books are tools in such processes, in that they explore a range of interventions that might be adjusted to suit a given context. Such approaches are labor-intensive, make little use of economies of scale, and are therefore unlikely to sit comfortably with donor expectations and the programming approaches of many agencies. Limited budgets and pressure to implement quickly leaves little time for landscape research and encourages programmatic replication of best practices. It may be that a middle ground needs to be found between programming strategies that are most desirable and what is realistically achievable. Critical analyses of the various entry points for engaging with customary justice systems need to be included in the reformers’ toolbox of knowledge resources as they design, pilot, adjust and implement more effective interventions; it is hoped that the information contained in these volumes can contribute positively to such a toolbox.

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