by Shane Quinn
Somalia has endured a rash of misguided international interventions to resolve its malaise, and apart from initial optimism of the Arta process in 2000 with its extensive civil society participation, these have consistently failed to deliver on their intentions. After all these years, is it finally time for the international community to move away from a centralised state solution towards a hybrid system of governance?
It’s a moot point, although in its latest policy briefing, Crisis Group is heavily advocating in favour of this solution. The latter is not the first to push for this. Back in 1999, in his article, ‘New Hope for Somalia? Building Block Approach’, Matt Bryden promoted autonomy for enclaves or regions which were traditonally recognised as being relatively clan homogenous. In his long research association with the country, Ken Menkhaus has gone further and addressed the idea of organic regional or district administrations assuming a greater role as a viable form of governance in Somalia.
Interestingly, we’ve come full circle after a series of failed initiatives aimed at establishing a central state. Despite all these calls for ‘going local’, promoting autonomy in Somalia is not without its critics. Many Somalis see autonomy as the final nail in the break-up of the country, and also a means of pandering to Ethiopian realpolitik with its emphasis on keeping the country weak rather than having a strong and potentially radical neighbour. The legitimacy of these emerging administrations has also been questioned, as some of them lack a close proximity to their respective communities and in some cases are more interested in being service providers or even, as a Chatham House report terms it, having a monopoly on security. International donors will have to make some hard calls before being possibly immersed in another political maelstrom.
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”. Continue reading
Posted in Guest posting, Resources
Tagged access to justice, customary law, development, gender, IDLO, justice for the poor, land disputes, Liberia, Mozambique, Namibia, Papua New Guinea, Rwanda, Somalia, Tanzania, Uganda, women's rights