DIIS CONFERENCE Supported by the Ministry of Foreign Affairs of Denmark with additional funding from International Development Law Organization (IDLO)

LIST OF ABSTRACTS - PRELIMINARY IIS CONFERENCE Access to Justice and Security Non-State Actors and the Local Dynamics of Ordering

November 1-3, 2010

1 Keynote Speakers

Justice and Security Architecture in Africa: the plans, the bricks, the purse and the builder

Professor Bruce Baker, Coventry University

A bricklayer likes to know before beginning a new project, what the client can afford, what bricks are to be used and what the building looks like that is to be constructed. These are essential questions for justice and security development as well. The building blocks on offer are very varied and are often divided into ‘state’ and ‘nonstate’ actors. Is that a fair and useful account (and for whom) or does that confuse and misrepresent the available providers? Then what is the ideal end product that is desired for Africa (and for whom)? Is it a state that holds a monopoly of justice and security provision or are there alternative models of security and justice architecture that look rather different from the West but that might work better in Africa? Then a reality check: are the plans that are being drawn up for Africa, achievable, affordable and what the people of Africa actually want? Finally, have we agreed who is going to be the builder for this development?

Bruce Baker is Professor of African Security and the Director of African Studies Centre at Coventry University. He has published several articles and books on non-state policing and has a high international recognition within this field. His research covers African democratisation, governance, policing, security sector reform, popular justice and informal justice. His current research focus is informal and formal policing in post-conflict African states. He has conducted fieldwork in Zimbabwe, Mozambique, South Africa, Rwanda, Uganda, The Gambia, Sierra Leone, Cape Verde, Seychelles, Liberia and Southern Sudan. his latest book is: Security in Post-conflict Africa: The role of non-state policing (CRC Press, 2009).

The Clash of Two Goods: Resolving Tensions between State and Non-State Dispute Resolution in Afghanistan

Thomas Barfield, Anthropology, University of Boston

Afghanistan has experienced state failure on a number of occasions, but this has not had a catastrophic impact because Afghan society never lost its cohesion. It had a long tradition of resolving disputes, punishing crime and uniting together to preserve their autonomy even during times when formal government institutions were flourishing. Disputes were settled though a system of mediation and arbitration. Crimes were dealt with by imposing a set of commonly accepted principles based on community standards on violators with an emphasis on restorative justice, not punishment. And communities maintained ties of solidarity that superseded both political ideologies and internal differences. When plans for state reconstruction began in 2001, these strengths were overlooked or seen as obstacles to instituting a formal justice system. International advisors lacked knowledge of such systems and Afghan government officials were keen to displace them to increase their own power and authority. Rather than lead to better governance, the clash of the two systems undermined the effective of each. Formal government institution could not gain the legitimacy they need and the decisions rendered by the informal system had no official recognition. This paper argues that in Afghanistan the two systems are compatible and that that each has its own strengths and weaknesses. By analyzing how they could interact effectively, we can make recommendations on how to create a more efficient and legitimate legal system. At the same time, by understanding how the power of international actors and international norms creates pressure to pursue policies that meet with local opposition, we can see state building as a form of political contest over who sets the rules and who has power, asking whether these improve the lives of ordinary citizens in Afghanistan or just imposes new burdens on them.

2 Thomas Barfield is Professor of Anthropology at Boston University and President of the American Institute for Afghanistan Studies. An anthropologist, Barfield conducted ethnographic fieldwork with nomads in northern Afghanistan in the mid 1970s as well as shorter stints in post-Soviet Uzbekistan and Kazakh areas of Xinjiang. His is the author of The Central Asian Arabs of Afghanistan (1981) and co-author of Afghanistan: An Atlas of Indigenous Domestic Architecture (1991). Since 2001 his research has focused on problems of law and political development in contemporary Afghanistan. In 2007 Barfield received a Guggenheim Fellowship that supported the completion of his research for his newly published book, Afghanistan: A Cultural and Political History (Princeton, 2010).

Film presentation

Law an War in Rural Kenya

A film by Professor Suzette Heald, London School of Economics

In 1998, a new movement swept through Kuria, in S.W. Kenya with dramatic effect. Cattle raiding fuelled by the increasing presence of guns had led to a situation of total insecurity, with all in fear of the thieves. In April of that year, a group of men in just one location, Bukira East, effected a new organisation merging ideas from the Tanzanian vigilante movement, sungusungu, with their own indigenous assembly, the iritongo. Within a year the movement had spread throughout Kuria and the District as a whole was at peace. This film revisits the iritongo movement ten years later. In telling the story of its origin, and its current operation, it reveals a broad contrast between the areas where the iritongo still operates, though with some difficulty, and those where it has faltered and died. In these latter areas there has been a revival of clan raiding and warfare. The film is observational in style, with the situation described through the words of the participants, emphasizing their agency. There is, thus, extensive use of sub-titles.

Suzette Heald is a social anthropologist at the London School of Economics with extensive field research in Africa. Her current research is on a vigilante movement in Kenya and Tanzania and she is in progress of making a film and writing a book on the topic.

Plenary

Risk Mapping and Analysis in Sudan: the re-ordering of public agendas through multi-actor consultation and information distribution

Maximo Halty and Fenja Fasting, CRMA, UNDP

The complexity of Sudan’s security, political and socio-economic situation is difficult to overstate. Despite the signing of three peace agreements in the past 5 years, the country still faces a low-intensity, but highly disruptive, conflict in Darfur, as well as heightened political and military tensions in both the East region and Transitional Areas. In addition, the fragility of Sudan is further accentuated by the upcoming referendum on Southern Sudan independence in January 2011. Hence, unless key triggers of instability are mitigated, Africa’s largest country risks returning to armed conflict. The Crisis and Recovery Mapping and Analysis (CRMA) project of UNDP works with both state and non-state actors to carry out localized processes of socio-economic and security risk mapping, which are then coupled with a UN and Government-wide consolidation of geo-referenced information resources. These resources are integrated into a multi-actor process of analysis to support evidence-based, conflict-responsive crisis and recovery planning and coordination. Beyond the immediate value of providing relevant and timely inputs for

3 strategic planning and coordination, it has become increasingly clear that this consultative information collection and analysis process has in and of itself had a noticeable impact on the re-alignment of public recovery and development priorities. By increasing the transparency of the process of public priority-setting, it is helping to give voice to multiple actors -both outside government as well as within it- that have been systematically disenfranchised from the setting of the public sector agenda in Sudan, which is very much at the root of the continued conflictivity. Even rigid authoritarian governments are often far from monolithic. The promotion of a bottom-up, multi-actor, consultative information collection and analysis process focused on crisis and recovery related threats and risks, can have a profound effect in facilitating wider, more complex –and thus ultimately more stable- agreements regarding the public agenda priorities. The conditions on which power and wealth are negotiated shift and previously suppressed voices are given a platform. This type of intervention therefore deserves greater consideration within the post- conflict/crisis stabilization and governance enhancement responses.

Reconfiguring the state and non-state actors in making communities safer in Africa: A return to left realism?

Monique Marks (University of KwaZulu-Natal), Julian Azzopardi (University of KwaZulu-Natal) and Jennifer Wood (Temple University)

In this article we attempt to move beyond ideological and popular ways of understanding the state as a provider of security. We explore what is really taking place in the local governance of security in South Africa and argue for a minimal and minimalist state approach. In so doing, we search for answers to the following question: Who should the public police be in emergent democracies where there is a plurality of policing providers, state and non-state? Drawing on research conducted in the city of Durban this article demonstrates that, to a large extent, policing is being carried out by agents other than the police. In this context, the article articulates a more circumscribed role for the police in a time (and place) of uncertainty, one that is anchored in local structures of strategic planning and regulation. Within such structures, non-state actors should be supported to play meaningful roles in ‘everyday policing’. We explore the challenges and possibilities that such a framework presents in places where states are weak and have questionable legitimacy and capacity. We try to move away from glib promises of a developmental state in Africa, rooted in explorations of the realities and likely possibilities of the governance of policing.

Shackled to custom and customary law: Zimbabwean women at crossroads

Slyvia Chirawu, WLSA Zimbabwe

The research paper is based on twenty years of research on laws and policies affecting women. The dichotomy is that the colonial government chose to keep customary law intact as regards Africans and the post independence state also chose to maintain customary law in the constitution. Therefore both forms of states embraced legal pluralism though the former was based on race and the later on a choice of law process that is largely based on social class. Despite progressive legislation, women still find themselves subservient to semi-autonomous social fields starting with the family and other forms of customary law that are not necessarily state sanctioned but are also not condemned outright. Non state actors have embarked on programs aimed at improving women’s access to justice but these have also revealed the uneasiness and tension between general and customary law. The notion of justice by non- state actors is that ultimately we need the state to enforce justice and security on one hand and on the other we note that the state by not dealing with custom and customary law emphatically, it has compromised the rights of women. It is also important to note that notions of custom and customary law are not homogeneous. Part of the dilemma lies in the fact that there are actors such as traditional leaders who are as much part of the state as they are part of ‘non- state’ actors. Non-state actors have not defined authority at both local and national levels and have chosen to deal with authority as defined by the state. In trying to compare customary and traditional notions of justice and security in relation to women with the state, is there another alternative that will ensure that women do not remain shackled

4 to the notions of justice as defined by both the state and the non-state actors? The writer’s hypothesis is that the third discourse is a radical transformation through enhancement of gender equality, a transformation that will tackle both customary and state notions of justice for women.

Slyvia Chirawu is the National Coordinator of WLSA Zimbabwe. She holds an LLB(S), an MSc International Relations from the University of Zimbabwe and an LLM from the American University, Washington College of Law. She is the recipient of the Hubert Humphrey Fellowship, a Fulbright funded program that recognizes commitment to public service. As part of this Fellowship, she specialized in gender and the international protection of women and children’s rights at Washington College of law. Chirawu also teaches family law and estate succession at the Faculty of Law, University of Zimbabwe. She has written and co-written publications on violence against women, human trafficking and HIV/AIDS and the law. Chirawu has vast experience in proposal development, workshop facilitation, project implementation, development of training materials, legal education, gender training and research. She sits on the Board of Young Women African Leaders Movement ( Zimbabwe) and Women in Law and Development.

Trends and Challenges of Constitutional Recognition of Indigenous Law and Justice in Latin America

Raquel Z. Yrigoyen Fajardo, International Institute on Law and Society- IILS/ Instituto Internacional de Derecho y Sociedad-IIDS

In the Americas, there are three cycles of constitutional reforms which recognise cultural diversity, indigenous rights and legal pluralism, including indigenous law and indigenous and peasant justice systems. Along these cycles, the constitutions have moved from the incorporation of specific cultural and indigenous rights, coming from the multicultural approach, to the recognition of legal pluralism (indigenous law with jurisdictional powers), the redefinition of the State model and a re-conceptualization of the human rights concept itself. By this means, constitutions have tried to accommodate the reality of legal pluralism within the framework of rule of law and human rights. In terms of the effectiveness, it seems that the bigger the ambition of these constitutions, the higher the challenges for their implementation. The first cycle of constitutional reforms, during the eighties, corresponds to the multiculturalism uprising. After the Canadian constitution of 1982, some Latin American constitutions, such as Guatemala (1985), Nicaragua (1987) and Brazil (1988) recognized the right of cultural diversity and some indigenous rights, breaking the monocultural State definition. Nevertheless, these constitutions did not recognise legal pluralism. In the second cycle, during the nineties -after the ILO Convention 169 (1989) adoption-, many Latin American constitutions (for example, Mexico and all Andean countries, except Chile) introduced the concept of “Multicultural Nation” or “Pluricultural State”, incorporated indigenous rights and recognised internal legal pluralism -indigenous customary law with jurisdictional powers-, breaking legal monism. And, in the third cycle, at this century, a couple of constitutions (Ecuador 2008 and Bolivia 2009) consider indigenous peoples as part of a new State pact: a “Plurinational State”, and legal pluralism is one of the principles of the State. The recognition of legal pluralism (indigenous law and indigenous justice) faces many challenges to be fully enforced. In particular, the legal culture of judges and ordinary justice operators is still monistic. So, there is a big resistance from ordinary judges to accept that indigenous authorities have jurisdictional power to resolve conflicts according to their own customary law. Another resistance come from the idea of indigenous inferiority, coming from the colonial times. Indigenous justice tends to be accepted just as far as it is like in colonial era: just for minor cases in conflicts between Indians, within Indian Territory. It cannot touch non-indigenous persons even they damage indigenous goods inside their territory. Finally, another serious problem for indigenous peoples autonomy is the conflict between transnational corporations and indigenous peoples as far as the corporations are authorized by the State to operate within indigenous territories,

5 even without indigenous their consent. Governments tend to favour transnational corporations’ activities within indigenous territories de facto limiting their regulatory and jurisdictional powers.

Raquel Z. Yrigoyen Fajardo is a Peruvian lawyer, MA in sociology of law and PhD in law (University of Barcelona), with a Specialization in Indigenous Customary Law (UNAM), and post-graduate studies in anthropology (PUCP), criminology (U.B) and Federal Indian Law (University of Oklahoma). She has worked in human rights, indigenous rights, access to justice, legal pluralism, women’s rights, and constitutional and judicial reform in several developing countries of Latin America and Asia, for United Nations and other human rights organisations. Yrigoyen is author of several publications, including: “Pathways to justice: Access to justice with a focus on the poor, women and indigenous peoples” (Cambodia: UNDP, 2005), “Justicia y Multilingüismo” (Guatemala: Programa de Justicia Checchi/USAID, 2001), “Pautas de coordinación entre el derecho indígena y el derecho estatal” (Guatemala: Fundación Myrna Mack, 1999). Yrigoyen has been a lecturer in several universities of the Americas and Europe. She is a founding director of the International Institute on Law and Society (www.derechoysociedad), editor of Alertanet (www.alertanet.org) and member of the Latin American Network on Legal Pluralism (www.relaju.org), among other academic organizations.

Programming for informal Justice Systems

Fergus Kerrigan, Danish Institute for Human Rights (DIHR)

As an increasing number of states and development partners are considering the place of informal justice systems in programmes of support to justice, the need for a framework for discussion of issues related to programming arises. Such a framework requires consideration of a number of levels, from the policy level (for both recipients and development partners), the level of justice sector programming and the operational level. At all of these levels, important discussions arise concerning aims, means and actors. The paper will present some of the elements that could usefully be included in this framework. It is informed by a long term study of informal justice systems in collaboration with the UNDP, UNIFEM and UNICEF. The following levels will be discussed: 1) the policy level (national policy and development partner policy); 2) The justice sector level with focus on including informal justice systems in programming at sector level; 3) The project level with focus on informal justice system structures, processes and substance/outcomes. The use and applicability of human rights standards and principles in these areas will be discussed. The presentation will make some observations on specific programming aims and experiences, related to the typology of different informal justice systems. Interventions will be categorized and discussed, from baseline studies and research on the basis and operation of informal justice systems, attempts to improve interaction with referral and monitoring processes, engaging with substantive norms and justice processes, the selection and mandate of adjudicators, and the education of users and providers.

Fergus Kerrigan is Head of Access to Justice Programmes at the Danish Institute for Human Rights (DIHR), Copenhagen.

6 Methods for Capturing the Justice Experience: Alternatives to Institutional Analysis - and Reflections on Its Resilience

Stephen C. Lubkemann (GWU) and Deborah Isser (USIP)

This paper lays out a case against research designs and policy approaches that conceptually separate customary from state/formal justice systems a-priori and that focus primarily on formal institutional and legal analysis in designing Rule of Law Reform policies. It argues for an alternative point of entry that focuses on local perceptions and practices of justice problem-solving as a point of entry and exemplifies a specific multi-disciplinary methodology for this approach that was developed in the Liberian context and that has since been adapted and deployed elsewhere. This approach captures vital interactions amongst customary and formal systems that institutionally-defined approaches tend to miss. It also produces a vastly different picture of institutions themselves as experiential interfaces—an approach that is particularly effective in explaining their political effects. Finally this approach examines the relationship between law and policy and their effects as an empirical question rather than assuming that behavior will flow in any direct or as-intended way from rewritten laws or new policies. In conclusion, this paper reflects on the institutional imperatives and the conceptual pre-dispositions that conspire to prevent the international community and its national counterparts from easily embracing alternatives to the institutional silos approach in the crafting of an understanding of post-conflict justice landscapes, and in defining and addressing legitimate “justice problems” and “ justice solutions”.

Stephen Lubkemann (Ph.d 2000, Brown University) is Associate Professor of Anthropology and of International Affairs at The George Washington University. He has conducted fieldwork in Mozambique, South Africa, Liberia, and Angola and among African refugees and migrants in Portugal and in the U.S. Since 2007 he has partnered with USIP on the project Customary and Informal Legal Systems in Liberia: Rule of Law Options for the First Post- Conflict Decade. He has published articles in the Journal of Refugee Studies, Canadian Journal of African Studies, Anthropological Quarterly, Journal of Peace Research, International Migration, and Diaspora, and is the author of numerous book chapters and reports. His book Culture in Chaos: An Anthropology of the Social Condition in War (University of Chicago Press, 2008) examines how displacement and violence effect social change in protracted conflict settings and critically reviews how international humanitarianism fails to account for new transnational realities. He served as a core consultant for the Humanitarianism and War Project (1998-2005), on the first Roundtable on Forced Migration of the National Research Council (1999-2001), and currently is a senior social scientist for the US Census Bureau’s Statistical Research Division. Deborah Isser (JD) is Senior Legal Advisor at the United States Institute of Peace, where she directs the project on Customary Justice and Legal Pluralism. Her work has involved field research, policy analysis and facilitated dialogue in Liberia, Southern Sudan and Afghanistan. She is currently developing a focus on women’s access to justice in legally plural environments. She is the editor of a forthcoming volume of case studies examining how customary systems contribute to the rule of law in post-conflict societies.

Police programming in Fragile Contexts

Roy Fleming, Stabilisation Unit, UK

Abstract TBC

7 Theme 1

Access to Justice and Security: Legal Pluralism and the Gendered Dynamics of Land Tenure in Botswana, southern Africa.

Professor Anne Griffiths, School of Law, Edinburgh University,

International and transnational organizations, including the United Nations (UN), World Bank and the UK’s Department for International Development (DFID) have poverty reduction at the heart of their global initiatives (UN 2008; World Bank 2006; UNDP 2005; DFID 2004, 2008; SIDA 2002). In recent years they have expanded the concept of poverty to include not only material deprivation but powerlessness and vulnerability in order to uphold principles of good governance and accountability that underpin development. They have recognized the need to take account of traditional or “informal” justice within their remit. For they observe that “informal’ justice is an important phenomenon world wide, which in Sub Saharan Africa deals with around 80% of disputes that arise (Prion 2005). Within this context it is acknowledged that women and children feature disproportionately among the poor. Land has been identified in the Report of the Commission for the Empowerment of the Poor (2008) as one of the four pillars of legal empowerment along with access to justice. Within Africa, rights to land have always been the subject of contestation, fuelled by changes in demography, the mobility and density of populations and economic development. A key resource for family and household livelihood, it has been the subject of ongoing debate especially in the broader context of nation building and development. The Botswana government notes that "studies worldwide have shown that the impact of population growth on poverty is strongest at the micro-level, that is, at the level of households and communities" acknowledging that "poverty remains one of the major development challenges for Botswana" (NDP9:24).The paper, based on empirical research carried out between 2009 and 2010 in Kweneng district, will examine the extent to which women are among the poor in Botswana. It will highlight the conditions under which women are excluded from or acquire access to and control over resources such as land, which is central to many families’ economic security. These conditions include access to law, embodying formal and informal justice under statutory and customary regulation, and the role these systems play in processing land allocation and disputes. Central to the discussion is an examination of gender and the ways in which women’s and men’s membership of families and extended social networks, derived from a study of life histories, not only shape their capacity to acquire resources but also impacts on their ability to engage with both formal and informal law. In addressing this theme, the paper will also explore the degree to which international human rights norms are incorporated into daily life as well as legal practice.

Professor Anne Griffiths holds a personal chair in the Anthropology of Law at the School of Law at Edinburgh University. Her research focuses on anthropology of law, comparative and family law, African law, gender, culture and rights and juvenile justice. Her most recent publications include The Power of Law in a Transnational World: Anthropological Enquires (2009); Spatializing Law: An Anthropological Geography of Law in Society (2009) and Mobile People, Mobile Law: Expanding Legal Relations in a Contracting World (2005) co-edited with F. and K. von Benda-Beckmann. Over the years she has held visiting appointments at various institutions including Distinguished Visiting Professor, Faculty of Law, University of Toronto, the Max Planck Institute for Social Anthropology, Halle/Saale, Germany, The International Institute for the Sociology of Law Oñati – Gipuzkoa, Spain. The University of Texas at Austin, School of Law and the Southern and Eastern African Regional Centre for Women’s Law at the University of Zimbabwe. She is currently a member of the Executive Body of the Commission on Pluralism, a branch of the International Union of Anthropological and Ethnological Sciences, of which she was President from 2003-2009. Her current research, funded by the Leverhulme (2009-2010) is on the Gendered Dynamics of Land Tenure in Southern Africa.

8 Widows, Orphans, the Extended Family and Local Courts in Zambia: Is There Hope for Justice?

Lungowe Matakala Chishinga, PhD University of Cambridge and consultant

The prevailing laws and traditions in Africa prevent millions of widows and orphans from inheriting from the intestate estates of their deceased husbands and fathers respectively. This paper examines five challenges faced by widows and orphans in Zambia: First, the main problem lies in Zambia’s legal framework. Article 23(1) of the Constitution prohibits all law from discriminating on the basis of sex. However, Article 23(4) exempts family law and customary law from the non-discrimination clause; thereby permitting them to discriminate. Second, Zambia’s customary laws do not allow a widow to inherit from her husband. Also, they favour the boy-child and discriminate against the girl-child. Meanwhile, the Intestate Succession Act (ISA) stipulates that widows should inherit 20%; and that all orphans (regardless of sex) are entitled to 50% of their deceased fathers’ estates. Although pluralism offers an opportunity for different legal systems to co-exist, in Zambia, it has created a battlefield for incompatible principles. This is worsened by the fact that Zambia has elements of both ‘deep law’ and ‘State law’ pluralism. Third, despite legislation being superior to customary law, research reveals that the majority of Zambians follow customary law instead of the ISA. Fourth, it is the Local Court that decides 90% of Zambia’s inheritance matters. The Local Court is more like a traditional court though it is established under the Constitution. For instance, it is not a court of record; prohibits legal representation; and is presided over by magistrates who know customary law and not necessarily written law. Often, magistrates uphold customary law instead of the ISA. Lastly, while the ISA contains many laudable provisions, it is not true that justice rendered by state actors alone best protects orphans in Zambia. One million orphans have lost both parents to HIV/AIDS and are cared for by the extended family, a powerful non- state justice provider that favours customary law. The question then is: How best can widows and orphans access justice in Zambia’s plural legal society? The paper proposes a broad-based feasible solution involving international support.

Lungowe Matakala Chishinga (Lulu) is a Zambian citizen. She holds a PhD in law from King’s College, University of Cambridge; and a Master of Laws in Human Rights and Democratisation in Africa from the Centre for Human Rights, University of Pretoria. She is a consultant to the Danish Institute for Human Rights and to CAMFED (Campaign for Female Education). Also, Lulu lectures on a part-time basis at the University of Zambia and at the University of Lusaka. From 2003 to 2009, Lulu was a lecturer of law at the University of Pretoria in South Africa. Her areas of expertise are widows’ and orphans’ inheritance rights in intestacy in Zambia; and reform of African customary law. Lulu is particularly interested in the type of justice meted out by non-state actors in Zambia – i.e. local courts, traditional courts, traditional leaders and the extended family.

Two Face of Change. The need for a bi-directional approach to improve women’s land rights in plural legal systems

Erica Harper, International Development Law Organization (IDLO)

A forty-year collage of development policies has succeeded in reducing poverty for 80 percent of the world’s population, but left the remaining bottom billion – 70 percent of whom live in Africa – in development traps characterized by lower life expectancy, higher infant mortality and long-term malnutrition, compared to other developing countries. Land titling, registration, formalization and distribution has been a key process in the long- term strategy to promote economic growth and development, but has failed for those in the ‘bottom billion’. To a large extent, such policies and subsequent laws have been particularly unsuccessful in legal pluralist contexts, because customary law continues to be observed by the majority of the population, who live in rural communities and are

9 largely ignorant of or unfamiliar with formal law and its institutions. Today, increasing recognition of the links between legal empowerment, poverty reduction and development has prompted greater international attention on how legal systems in developing pluralist countries operate with respect to land. The distribution of land is a reflection of social, economic and political practices as much as it is an expression of law. In communities adhering to customary norms, decisions made by local leaders and followed as if they are law, are a product of traditional, cultural and social attitudes rather than an awareness of and obedience to the law. Unfortunately, customary law has evolved in response to changing social, environmental and political circumstances to increasingly discriminate against women. This is particularly problematic given the symbiotic relationship which exists between the advancement of women and development. However, the internationalization of individual rights and subsequent government commitments to international human rights treaties has prompted several developing state governments to begin and continue passing legislation explicitly articulating land rights, including women’s land rights, in accordance with human rights principles. Contemporaneously, in response to the continuing rural disregard for formal law, international development agencies have shifted their focus to consider the operation of customary law at community levels. The heart of the dilemma, the reason titling programs have failed in pluralist countries, and the challenge in implementing a more equitable distribution of land rights, lies in the “catch-22” confronted by any formal approach. Any property system must be respected locally, because central governments of developing countries are generally too institutionally and resource-poor to effectively administer and enforce a comprehensive property law scheme. Traditional local structures are dominated by male local elites, who continue to enforce gender-discriminatory customary norms in preference to gender-neutral formal property law. The questions are then: how to ensure the formal law will offer sufficiently secure land rights to women, and secondly how to persuade or coerce local governance structures to follow formal law? On closer inspection of the domestic context, including through primary research informing the conclusions of this article, civil society organizations are using formal law, rather than customary law, as the tool by which to enhance women’s land rights. By providing rural community legal education, training local paralegals, and establishing paralegal services to assist women with land rights claims, domestic organizations are attempting to change the culture and practices surrounding distribution of land. This article explores why and how this approach has evolved, and whether and in what way it is succeeding. While many concepts and arguments apply with equal force across regions, examples and statistics are drawn primarily from Africa, and the detailed conclusions are drawn from research, comprising surveys of women and community leaders, conducted in Mozambique and Tanzania earlier this year. Part I of this paper describes the critical role land occupies in the process of economic development, the heightened importance of land in the African context of development, and the essentiality of women’s economic participation to development. Part II describes the operation of plural legal systems, traces the traditional approach of focusing on formal laws to influence land usage, and outlines the continuing practical challenges of a law-based approach. Part III explores the strategies now being pursued by domestic NGOs and, based on primary research in the two case study countries, draws conclusions about the importance of legal empowerment programs in promoting gender-balanced land practices.

Community approaches to criminal justice: emerging trends and experiences

Kerstin McCourt, Open Society Justice Initiative

Studies estimate that 80-90 percent of disputes are addressed outside of formal justice systems. This paper will explore community approaches to criminal justice looking at emerging paralegal and mediation programmes, traditional or ‘non-state’ systems and their interaction with the formal justice system. It will look specifically at programmes in Kenya, Malawi and Sierra Leone as well as drawing on existing literature. Studies analysing ‘non-state’ justice systems are often premised on the assumption that criminal cases are more appropriately addressed within the formal justice system. ‘Non-state’ systems are often found to be overstepping their mandate in relation to criminal offences and rights-based analyses point to significant gaps in compliance with the rights guaranteed under article 14 of the International Covenant on Civil and Political Rights on the right to a fair trial. As

10 a consequence, however, there has been limited interrogation of whether alternative approaches may, in some circumstances, be well suited to the adjudication of minor criminal cases. This may be particularly relevant where a more restorative element is a priority for the parties involved. Many questions require closer analysis, for example, what constitutes a minor case, who should be involved in deciding the appropriate forum and what safeguards are necessary? The analysis is against the backdrop that in many countries, including countries in North America and Western Europe the formal justice system is failing to deal in an holistic way with crime and community safety. Prison populations in the UK have doubled over the last twenty years and in many countries pretrial detainees form the majority of the prison population remaining in pretrial detention for months or even years. The developmental and socio-economic implications are largely under explored especially where youth form the majority of the detained population. The paper will draw on practical examples from community based paralegal programmes, initiatives promoting diversion and instances where, in the absence of alternatives, informal mediation is carried out by law enforcement agents. The paper will be largely exploratory and will aim to highlight areas for more in-depth analysis.

Kerstin McCourt is a senior advocacy advisor for the Global Campaign for Pretrial Justice, a project of the National Criminal Justice Reform Program of the Open Society Justice Initiative. Based in Brussels, Kerstin previously worked with the Danish Institute for Human Rights. From 2008 to 2009, she coordinated projects on access to justice with a specific focus on legal aid, informal justice mechanisms, and justice sector reform in Sub- Saharan Africa. From 2005 to 2007, she was stationed in Kigali, Rwanda, as the Head of Mission for DIHR and managed all aspects of the Rwanda program that focused on access to justice in post conflict transition. She holds a BSc Hons in Biological Sciences from Durham University, a Post Graduate Diploma in Law from The College of Law and a European Masters in Human Rights and Democratization. Kerstin is a member of the Law Society of England and Wales.

Justice should be blind, but is the international community’s support to informal justice mechanisms in Nepal given blindly?

Sarah Dalrymple, Rosy Cave and Katrina Aitken, Safer World

In the aftermath of the 2006 peace agreement that marked the end of a decade of Maoist insurgency in Nepal, the international community, faced with increasing difficulties associated with supporting and reforming formal state-run providers of security and justice, began supporting the creation of new informal justice mechanisms such as paralegal committees and community mediation committees. These new mechanisms created a third layer of justice provision alongside the re-emerging traditional dispute resolution mechanisms, whose influence had been lessened in some areas by the Maoist ‘People’s Courts’ and the Royal Nepal Army during the conflict. Today, these two sets of informal justice systems both seek to provide speedy and affordable access to justice at the community level. The international community has made some efforts to link new informal justice mechanisms to formal state systems and a few donors have begun transitioning the weight of their efforts back toward investments in formal state-run justice mechanisms. Few efforts have been made, however, to understand and engage with the traditional dispute resolution mechanisms, which are regarded as having insufficient oversight and being discriminatory in their practices. Little is understood about how these various mechanisms compete or co-operate with one another to exercise authority at the local level and how local citizens choose between available formal and informal mechanisms to access justice. This paper investigates the international community’s approach to supporting the provision of justice in Nepal. It examines the logic underpinning their decision to create new informal justice mechanisms given the available options of investing in and strengthening pre-existing traditional dispute resolution systems or the re-emerging formal state systems. The paper further explores how new informal justice mechanisms continue to shape the creation and maintenance of power and authority in Nepal and examines how this impacts on local populations’ access to justice and conflict dynamics. Finally, the paper sets out recommendations for how the international community’s efforts in

11 Nepal may be sharpened and where successes and challenges may inform international best practice in the area of justice provision.

Sarah Dalrymple is the Regional Conflict and Security Advisor for South Asia, currently based in Nepal. Sarah has over 7 years experience working on conflict, security and development issues with a regional focus on East Africa and South Asia. She has a thematic expertise on conflict sensitivity, community security, gender and security and security sector reform which has involved undertaking participatory conflict analyses, training and support to governments, donors and civil society to mainstream conflict sensitivity into development programming in a number of contexts, analysis of security sector reform programmes and research on gender and reintegration. In addition, Sarah played a lead role in establishing Saferworld’s work on climate change, security and conflict. Previously, Sarah worked with International Alert, local NGOs working on community security issues in Tanzania, Oxfam GB and for a number of other UK development charities. Sarah holds a Bsc in International Development Studies with Geography.

Nepal: An absent state, and informal injustice – what next?

Rima das Pradhan-Blach, Fragile States/Rule of Law Specialist

More than 80 % of the Nepalese population live in rural areas and are dependent on subsistence-based livelihoods. According to a World Bank report of 2004/05, only 80 % of village or district roads were earthen and passable only in the dry season. 11 of the 75 districts in Nepal are not connected by road. The decade-long conflict, lack of resources, and infrastructure, means that the state is absent from most of Nepal. In the case of the formal justice system, there are 244 judges for a population of 29 million. People do not believe in the courts for a host of reasons. People are largely illiterate in the rural areas, and do not know how to use the courts. Furthermore, villagers who depend on subsistence based lifestyles, do not have the time, let alone the cash to go to court. Community-based dispute resolution, has long been practised in different ways by the 60 or more different ethnic groups. With the Jaan Andolan (people’s movement) in 1990 and the dissolution of the non-elected panchayat system, these community dispute resolution systems evolved. During the time of the conflict between 1996 – 2006, parallel “people’s courts” were introduced by the Maoists. Under the Local Governance Act of 1999, Village Community Mediation efforts were also launched as hybrid institutions. After the Comprehensive Peace Accord, there were various efforts to establish other community dispute resolution mechanisms. I will attempt to look at a sample of community dispute resolution systems, and how they have been impacted/evolved with the different events over the last twenty years. One of the issues that is emerging clearly, is the role of women in these community dispute resolution systems and the transformational impact that this has had within the community. As Nepal continues efforts to stabilizing the fragile peace, it is important to get a full understanding of the range of mechanisms that are being employed to inform local-level service delivery and address grievances. In Nepal, there is a strong link between the informal system and security. Lessons learned from these observations may be of value for scaling up. The study will also aim to look at how inclusive these processes have been to ensure that the most marginalized also have access to these services. Rima das Pradhan-Blach is of Nepali origin. As a result of a violent conflict, The Gorkhaland Agitation in Darjeeling, which directly touched her family, immigrated to Australia. She moved to the USA for a masters focused on justice issues in war to peace transitions from Georgetown University, before moving permanently to Denmark. In Nepal, as a consultant for the International Commission of Jurists, she worked on developing the capacity of Judges from Districts and Villages, and advised on constitutional issues. She continues to advise various agencies on Access to Justice issues in Iraq. Between 2008–2010, she was the lead consultant at the US Department of State/INL for a major integrated rule of law project. With the World Bank, Rima worked with the Iraq Core Team where she covered a range of issues, including informal justice mechanisms in Iraq. In Afghanistan, she conducted an

12 assessment for USAID on Legal Empowerment for Women and Access to Justice (formal and non-formal). Rima has also worked extensively on rule of law issues in Indonesia and East Timor. She has been published by the World Bank, including the Conflict Unit, USAID and various journals in Australia.

Theme 2

What do Ghanaians think about justice and fairness? A study of local justice institutions in Ghana

Richard Crook (University of Sussex) and Kojo Asante (Center for Democratic Development, Ghana)

In Ghana, as in many African countries, the legal system and the courts have been criticised as inaccessible to ordinary citizens because of their formality, long delays, cost and sometimes “alien” procedures and rule. Recent policies in Ghana have emphasised the need for the courts to make increasing use of Alternative Dispute Resolution (ADR), and the state has also supported other dispute settlement institutions (DSIs) which use either informal mediation or customary codes and procedures, running in parallel with the court system.Our study (part of the African Power and Politics Programme (www.institutions-africa.org) sought to answer the question of whether these new approaches to the provision of justice have been able to provide dispute settlement which is legitimate, effective and accessible in the eyes of the public—and thus consolidates the ‘rule of law’ in its broadest sense. We specifically sought to compare the formal state courts with new, more informal DSIs and therefore carried out case-studies of the following institutions: the Magistrates Courts; the District ADR services offered by the Commission for Human Rights and Administrative Justice (CHRAJ), and the new ‘land ADR tribunals’ envisaged by the Customary Land Secretariats based on Ghana’s powerful traditional chieftaincy institutions. In this paper we present data on one of our main questions: do the different tribunals offer a kind of justice which is trusted by ordinary people, because they correspond to a ‘Ghanaian way’ of doing things—that is, are they offering what people really value and want from a dispute settlement? The answers are based on the results of a mass survey of popular opinion, surveys of litigants in the three courts/tribunals and observation of cases to find out what people think makes a case settlement ‘fair’, and what it is they seek or want from a dispute settlement process. The research challenges stereotypes about popular beliefs, which are often assumed to be based on what is offered by ‘customary’ chiefs’ courts. Most Ghanaians in fact define justice in terms of ‘due process’.

Richard Crook is Professorial Fellow at the Institute of Development Studies, University of Sussex, UK, and was formerly Director of the Institute of Commonwealth Studies, University of London, and Senior Lecturer in Politics University of Glasgow. He is a political scientist with special interests in socio-legal studies, public service reform, decentralization, and the role of transnational non-governmental public actors in policy making. He has worked mainly in West Africa and South Asia. His main publications include (with James Manor) Democracy and Decentralisation in South Asia and West Africa (Cambridge University Press, 1998) and The law, legal institutions and the protection of land rights in Ghana and Cote d'Ivoire (Institute of Development Studies, Brighton, 2007). Kojo Asante is Research Programmes Manager at the Center for Democratic Development, Ghana. He holds a Master’s degree from the State University of New York and practised law in the UK before becoming a full time researcher in Ghana.

The Variable Burden of History: Non-State Dispute Resolution in Three Regions of South Asia

Shandana Khan Mohmand, Kripa Ananthpur, Sanjay Lodha, Ali Cheema and Andres Mejia Acosta

Why do rural citizens turn to non-state actors for justice and security? With the exception of shalish in Bangladesh, this question has not been studied in South Asia. This gap in the literature is surprising, given that our empirical data indicates that almost 70 per cent of rural citizens use non-state, informal, local dispute resolution institutions, rather

13 than formal state-institutions, in the villages of India and Pakistan. We use a quantitative and qualitative dataset of over 2500 households in 67 villages in 3 states and provinces of India and Pakistan to not only fill this gap in the literature, but to also empirically estimate if variations in the use of non-state dispute resolution institutions are predicted by tradition or socio-economic factors. We also test a hypothesis presented in an earlier paper of historic direct and indirect colonial rule affecting how villages interact with the formal state today. We do this by using household-level data on dispute resolution processes and the choices citizens make between formal state and informal village-based institutions in South Asia. Our results provide insights into the variation that exists between our three case regions, between villages within each region, and between types of households. They also allow us to analyse the structure of these non-state institutions and the local ordering of non-state actors, and they suggest that the current use of these institutions is impacted by patterns of colonial rule, and current socio-economic inequality in the villages of India and Pakistan.

This paper is the product of a 5-year research project on Informal Institutions and State Capacity in India and Pakistan, supported and funded by the Centre for Future State, Institute of Development Studies, UK. It has been co-authored by Shandana Khan Mohmand (Institute of Development Studies, University of Sussex, UK); Kripa Ananthpur (Madras Institute of Development Studies, India); Sanjay Lodha (MohanLal Sukhadia University, India); Ali Cheema (Lahore University of Management Sciences, Pakistan); and Andres Mejia Acosta (Institute of Development Studies, University of Sussex, UK).

Non-State Actors and Citizens' Perspectives of Justice and Security in Lebanon

Ari Baghdassar Tatian, Head of Research & Studies Department at the Lebanese Parliament

Local social fabric is an important factor determining modality of relations between citizens and informal justice and security providers. Given the ongoing dissent among various Lebanese sects, the integrity and competence of central authorities had been compromised, in favor of leaders (former warlords) of dominant religious sects, who played a dual role of assuming public office, and confiscating latter's role of service provision, channeling it through their political parties. Despite being manipulated, citizens show continuous allegiance to them, in return of some services, which public authorities fail to provide adequately. During the civil war (1975-90), non-state actors claimed to have provided justice and security in their areas of domination. Although armed conflict is over, citizens still resort to non-state actors, granting them "informal legitimacy" and continued existence, as sectarian allegiance surpasses efforts for achieving common public perspectives toward issues of general interest, while historical, socio- cultural and political heritages and factors reinforce such trends. Religion plays an important role in furthering the said trend, as it defines concepts that are associated with notions like justice and public interest, which are affected also by customs, tribal/ethnic identity and political affiliation. Dominant non-state actors were able to impose themselves on the authorities, while the weak were unable to match the challenges emanated, resulting to cases of frustration and marginalization among their sects. The services rendered by non-state actors, were at the expense of the efficacy and credibility of public institutions, which rarely struggled against their contenders. Institutions set by non-state actors tended to be micro prototypes of conventional public institutions, though they were by far less democratic, serving the interests of de facto leaders, who, together with their informal structures, discredited and compromised the existence and functions of public governance structures. Non-state actors and institutions continue to grow at the expense of public welfare and national interest in Lebanon, as they substitute rather than complement the role of state authorities. This bears a strong implication on the policies of international donors, especially in maintaining alternative structures and mechanisms of public order.

Ari Baghdassar Tatian (41) is a Lebanese citizen of Armenian descent. He holds a master degree in international relations, and is preparing for Ph.D studies at European universities. He occupies the post of Head of Research & Studies Department at the Lebanese Parliament, and has internship experience (3 y.) with UNDP. Ari carried out

14 several distance learning courses with the World Bank and UNITAR. Moreover, he ahs participated in capacity building and international training programs mainly in the agricultural sector (Austria, Netherlands) and in the water sector (Jordan (twice), Egypt, Sweden). He has received funding for training activities (and conference attending) from the governments of United States, Netherlands, Austria, Japan, France and Sweden, in addition to the World Bank. I have extensive publications record at academic, professional (Lebanese Parliament) and international levels (Sida (2007), International IDEA (2008, 2010)).

Brawl, Brains and Bravery: Understanding the complexities and changing dynamics of how local notions of (in) security and (in) justice are being perceived and addressed.

Emmanuel Addo Sowatey and Raymond Atuguba

A variety of old and new ‘informal’ response mechanisms and structures have been developed and or instituted by a great number of Africans as a response to their justice and security needs. In consequence, the various responses have attracted a lot of scholarly attention in recent times. One of the response mechanisms has been (mis)branded as Neighborhood Watch Dog schemes or Vigilantism. Yet, none of these studies have been able to fully explain or unpack the complex relationship and intriguing ever-changing rapport that are oftentimes established first within these communities, and secondly between various communities and the state. In other words, how do (i) these response mechanisms feed and inform local notions of justice and security and (b) how are these notions translated into actions which in turn attempt to reshape and renegotiate the confines of the (power) relations that exist between the state and various segments of society. Additionally, these relationships and their associated power relations are not permanent but are also influenced by specific and broader, national and international events. These relations and factors impact local security needs and are often a major source of insecurity. This paper presents initial findings of an on-going study of how residents of two local communities (North Legon, a high-income, population low-density suburb and Nima-Mamobi, a low- income, population high- density migrant community) perceive (in)security and (in)justice based on their own criteria of threat assessment and seek to address these issues. The paper mainly argues that the creation of watch dog schemes and vigilante groups in these places have also created a space for ordinary people to forcefully create and sometimes determine the relationship and power dynamics that are fostered between hitherto neglected communities and the state. Invariably, these situations are also reshaping and fusing the confines of the concepts of powers and responsibility of the State and its citizens and how justice and security are defined.

Emmanuel Addo Sowatey is a Research Officer at the National Peace Council, Accra, Ghana. Raymond Atuguba is lecturer at the Faculty of Law, University of Ghana, Legon, Accra, Ghana.

Neither State nor Custom, More than State and Custom: Liberian Perceptions of Justice as a Socio- Political Navigation Challenge

Stephen Lubkemann (GWU) and Deborah Isser (USIP)

Drawing on over 2 years of intensive fieldwork in Liberia, this paper will explain how most Liberians understand and engage with the institutional topography of potential justice providers in post-conflict Liberia. While many of the principles that inform widely subscribed to understandings of what justice should be about dovetail far more closely with the customary justice tradition than with the formal legal system, in this paper we explain how the transformative effects of the war and post-conflict policies alike have undermined the effectiveness and social responsiveness of both customary and formal justice systems. Consequently, Liberian strategies for engaging with all forms of justice institutions are informed by a mounting skepticism that either customary or state courts can deliver

15 the justice they desire and the quest to obtain justice has become little more than an effort to secure advantage through the mobilization of social networks or through even more direct forms of political and/or economic power. Finally we explain how in actual practice, “customary” and “state/formal” justice institutions are not approached by most Liberians as distinct and separate avenues for seeking justice, nor as the only options for seeking recourse, but as poles in a power topography that also includes a wide array of other actors and institutions that are not a part of either the formal or the customary justice systems but who are often appealed to and frequently affect justice outcomes.

Stephen Lubkemann (Ph.d 2000, Brown University) is Associate Professor of Anthropology and of International Affairs at The George Washington University. He has conducted fieldwork in Mozambique, South Africa, Liberia, and Angola and among African refugees and migrants in Portugal and in the U.S. Since 2007 he has partnered with USIP on the project Customary and Informal Legal Systems in Liberia: Rule of Law Options for the First Post- Conflict Decade. He has published articles in the Journal of Refugee Studies, Canadian Journal of African Studies, Anthropological Quarterly, Journal of Peace Research, International Migration, and Diaspora, and is the author of numerous book chapters and reports. His book Culture in Chaos: An Anthropology of the Social Condition in War (University of Chicago Press, 2008) examines how displacement and violence effect social change in protracted conflict settings and critically reviews how international humanitarianism fails to account for new transnational realities. He served as a core consultant for the Humanitarianism and War Project (1998-2005), on the first Roundtable on Forced Migration of the National Research Council (1999-2001), and currently is a senior social scientist for the US Census Bureau’s Statistical Research Division. Deborah Isser (JD) is Senior Legal Advisor at the United States Institute of Peace, where she directs the project on Customary Justice and Legal Pluralism. Her work has involved field research, policy analysis and facilitated dialogue in Liberia, Southern Sudan and Afghanistan. She is currently developing a focus on women’s access to justice in legally plural environments. She is the editor of a forthcoming volume of case studies examining how customary systems contribute to the rule of law in post-conflict societies.

Theme 3

Women’s Access to Justice in Legally Plural Conflict-Affected Societies Tanja Chopra (UNIFEM) and Deborah Isser (USIP) The last decade has seen increasing engagement with customary justice systems by international policy makers and practitioners in conflict-affected societies. One of the core dilemmas has been that while customary systems are often considered legitimate and efficient, especially compared to the broken formal system, they do not always comply with international human rights standards and gender equality. Yet, efforts to introduce women’s rights into customary systems are often misguided and backfire, for two fundamental reasons. First, they tend to be based on a false assumption that formal laws and institutions are better able to protect women’s rights. In fact, most often the formal justice sector in practice reflects the same fundamental inequalities embedded in society. Second, efforts to inject legal equality standards into customary societies may serve to cut off important internal mechanisms used by women to promote their interests without providing a viable alternative. In promoting access to justice for women, policy makers and practitioners need to stop pitching the formal against the customary system and see the challenges as an indication for a more fundamental need for social change. The question is what the contribution of the various justice systems to social change can be. This paper draws on field work by the authors in a range of conflict-affected environments, as well as on a wider literature review to investigate how women in fact fare in multiple legal orders. The paper argues that efforts to promote women’s access to justice should focus on the opportunities engrained in: a) the fluidity of the legal orders, which provides space for contestation from ‘within’, and b) the navigation between multiple orders that can allow women to play out one system against another in search of more equitable justice.

16

Tanja Chopra (PhD in Social Anthropology) is currently the UNIFEM Women, Peace and Security Adviser for the East & Horn of Africa, where she is dealing with policy and practical concerns of women’s access to justice in conflict and postconflict scenarios. Previously, as the Program Coordinator for the World Bank’s ‘Justice for the Poor’ program in Kenya she was responsible for research on justice issues among the pastoralist population of Kenya. She has also conducted extensive field research among societies of Eastern Indonesia, worked for the UN electoral mission and the UN Transitional Administration in East Timor as a Political Affairs Officer, and was deployed as a Social Development Specialist for the World Bank in the West Bank and Gaza, where she advised on development interventions in relation to justice and local governance. She has published extensively on the issue of local socio-political structures and their relation to state institutions. Deborah Isser (JD) is Senior Legal Advisor at the United States Institute of Peace, where she directs the project on Customary Justice and Legal Pluralism. Her work has involved field research, policy analysis and facilitated dialogue in Liberia, Southern Sudan and Afghanistan. She is currently developing a focus on women’s access to justice in legally plural environments. She is the editor of a forthcoming volume of case studies examining how customary systems contribute to the rule of law in post-conflict societies.

Community Agents of Change: working with traditional leaders to reform customary law in Somalia

Erica Harper, International Development Law Organization (IDLO)

In recent years, the idea of promoting legal empowerment as a means of increasing access to justice has sparked growing interest in donor circles. At the same time, recognition that non-state justice is the reality for many of the world’s poor has led to greater acceptance of the need to include customary justice systems within the scope of legal reform and development efforts. Indeed, the question is now becoming how, rather than if, efforts should be made to promote greater access to justice through engagement with customary justice systems. However, a second dilemma arises once the decision to engage is made: how to do so in a way that has local legitimacy, that maintains the positive aspects of customary law that make it popular with justice seekers, and that also promotes the modification of the rules and practices that do not comply with international human rights standards or that disadvantage vulnerable sections of the community. To shed light on the issue, this paper examines the short- and medium-term impact of attempts by traditional elders in Somaliland and Puntland to revise elements of Somali customary law (xeer) with the aim of bringing it into greater alignment with both Islamic law (shari’a) and international human rights standards. Supported by the Danish Refugee Council, the elders initiated a process of dialogue culminating in regional and national declarations in the two de facto autonomous regions, which contain revisions to xeer in a number of key areas. Six years after the first dialogues commenced, the research on which this chapter is based indicates that the declarations can be linked to certain positive changes in non-state justice, including the abolition of harmful practices such as ‘widow inheritance’, advancements in women’s inheritance rights, and a shift towards individual and away from collective responsibility for serious crimes. Other objectives, however, particularly in relation to enhancing access to justice for vulnerable groups such as displaced populations, minorities and victims of gender crimes, do not seem to have met with the same level of success.

17 Vernacularization and Paralegals: Replicating the TIMAP model in the Middle East and South Asia

Yüksel Sezgin, Harvard Divinity School

My research deals with NGO-operated paralegal programs and their role in integration of universal human and women’s rights principles into non-state/quasi-state religious and traditional legal systems in the Middle East and South Asia. My earlier work in Israel, Egypt and India have shown that religio-legal systems are often detrimental to rights and freedoms of individuals, particularly women, children, religious dissidents and people who do not belong to a “recognized” cultural community. However, again as my work with women’s organizations in these countries demonstrate, individuals do not just passively sit on the sidelines and silently accept restrictions imposed upon their rights and freedoms by religio-legal and traditional authorities. On the contrary, they engage in various “hermeneutic” activities through which they vernacularize international human rights standards into local cultures by reinterpreting religious texts, morals and traditions. I have found the hermeneutic approach to be much more effective and promising than so-called secular or top-down approaches that forcefully impose alien ideas of rights and liberties upon non-western populations. However, the main problem with the hermeneutic approach is that it is often undertaken by smaller groups who do not coordinate their efforts on local, regional or national level. In other words, in order to utilize full potential of hermeneutic approach we have to find ways to scale up vernacularization efforts as part of an integrated local and national strategy. Right at this point, I turn to NGO-run paralegal programs as a possible answer to the question of scaling up hermeneutic approach to human rights. For example, TIMAP has been running a successful paralegal program in Sierra Leone that frequently deals with issues of human rights under customary, religious and formal legal system. As some argue, TIMAP has established a promising system to help local communities “internalize” universal rights standards in their everyday lives and practices. In this respect, the main question that the present study will look into is whether TIMAP has been really successful in incorporating universal rights and liberties into religious and customary systems in Sierra Leone, and if so, to what extent the TIMAP model can be appropriated in the Middle East and South Asia to remedy the scaling problem that hermeneutic groups seems to suffer from in these regions. The study that relies upon more than 200 face-to-face interviews with people from 20 ethno-religious communities and ethnographic data collected through fieldwork in Israel, Egypt, India and Sierra Leone will not only document various human rights violations under religious and customary system across four countries, but also sample successful strategies and best practices of integrating universal standards of rights into local practices that I categorically label as “hermeneutic” approach. Second, the study will assess the potential of paralegal programs as instruments of value internalization by specifically looking at the case of TIMAP. Lastly, drawing upon lessons learned from the case of TIMAP, the study will make policy recommendations for international organizations, donors and members of programmatic communities about how to best replicate the TIMAP model in the Middle Eastern and South Asian contexts.

Yüksel Sezgin is a Visiting Assistant Professor of Women's Studies, Religion and the Social Sciences at Harvard Divinity School, and a consultant with UNIFEM. Prof. Sezgin’s research and teaching interests include legal pluralism, informal justice systems, religious law, state-society relations and human rights in the Middle East, South Asia and Sub-Saharan Africa. Prof. Sezgin, an executive body member of the Commission on Legal Pluralism, has recently guest-edited the Journal Legal Pluralism’s special issue on human rights and plural legal systems

18 Theme 4

Challenges and Opportunities in Supporting Access to Non-State Funded Justice

Piet Biesheuvel, the Libra Advisory Group

Providing development assistance to non-state justice and security providers is not a new idea; some development agencies have placed engagement with non-state actors at the centre of their safety, security and access to justice programmes since the late 1990s. The realisation that the majority of people, particularly the poor, vulnerable and marginalised, were accessing their justice from non-state providers made any alternative approach, particularly one focused only on supporting state institutions partial or irrelevant. If, for example, 83% of people in a fragile state access their justice from non-state suppliers, why would a development programme not spend 83% of its funds supporting this activity, as opposed to providing more police training and building further court houses and prisons? But life is not that simple. Political and practical impediments have prevented development assistance being targeted directly in support of the very structures most people turn to when having suffered a grievance or requiring a dispute to be resolved. There are a number of impediments to readdressing the balance between state and non-state development assistance: 1) Many donors are risk adverse, being concerned that involvement with non-state actors, particularly those operating within the security sector responsible for human rights infringements, will cause reputational risk and make life difficult for them in their capital city; 2) Justice development professionals are comfortable with their peers e.g. fellow lawyers and judges, but less comfortable operating within a system they neither understand nor inherently agree with. In many cases such views will be amplified by local state actors; 3) The money cannot be spent! Experience has shown that large amounts of money are not required when supporting non- state justice activities, with smaller localised interventions having the most impact; 4) Changing long established local ‘traditional’ systems may weaken their relevance and sustainability; 5) In areas where conflict is still taking place e.g. Afghanistan, international actors normally not involved in development activity frequently have little understanding of the concept of non-state delivery of justice and security, and may be dismissive of approaches in support of same. This paper will examine recent design and implementation activities which have sought to balance support for state and non-state justice and security actors. These approaches have also addressed the state’s ability or willingness to meet the demand for increased access to justice.

Piet Biesheuvel is a principal of the Libra Advisory Group, a specialist security and justice policy consultancy. He has a wide range of developmental experience in the justice and security sectors, especially in sub-Sahara Africa where he operated in the field for over fourteen years. He has managed long-term Safety Security and Access to Justice (SSAJ) programmes in Uganda, Malawi and South Africa. On behalf of the UK Government he has advised on, designed, implemented or reviewed security and justice sector reform programmes in a wide variety of countries including Nigeria, Ethiopia, South Africa, Sierra Leone, Sudan, DRC, Lebanon, Iraq, Kosovo, Macedonia, Bosnia & Herzegovina, Bolivia, Guyana, Sri Lanka, and Vietnam. He has also conducted a number of sector-wide reviews for the British Government’s conflict prevention pools. Recent work for Libra Advisory Group has taken place in Nepal, East Timor, DRC, Nigeria, Sierra Leone and Bosnia. Between August 2008 and February 2009 he was the Head, Rule of Law in the PRT Helmand Province, Afghanistan. He has provided policy support to the UK and Dutch Governments. He is a regular speaker on security and justice development issues.

19 Experiences and Lessons Learned from Helmand, Afghanistan

Mette Nielsen, Stabilisation Unit, UK

Evidence-based policy-making and programming is a mantra that most people subscribe to but is also a highly inconvenient task in a number of ways. First, making decisions based on evidence requires you to actually find some evidence and come to terms with the messy place that is the world. It also means starting from where we are and listening to the experiences and needs of communities. Second, evidence on its own does not tell us much about implications for practice. It does not, unfortunately, come in a neat package wrapped in the material that lessons are made of. Learning lessons means translating the evidence and answering the "so what"? - and perhaps even changing what you do. Donors, most would agree, are notoriously slow at learning lessons. The UK Government now has a dedicated capacity in the Stabilisation Unit to guide and lead the cross-Government process of learning lessons about what works and what does not work in conflict-affected and stabilisation environments. This paper sets out what we have learnt so far from our engagement with community-based justice mechanisms in Helmand Province in Afghanistan and reflects on what they might mean for best practice.

Mette Nielsen is a Justice and Rule of Law Adviser in the UK’s Stabilisation Unit (SU). Mette recently returned from Afghanistan where she worked for the Department for International Development (DFID) as a Governance Adviser covering anti-corruption work and justice sector reform with a specific focus on community-based justice mechanisms. Mette was part of a core working group constituted by the Afghan Government to develop a policy on relations between state and community-based justice actors. Previous roles in DFID include work on programmes to support UN reform with respect to peace and security and the Occupied Palestinian Territories. Mette has also worked for Danida in Uganda. Mette holds a MSc in International Relations from London School of Economics and Political Science and a BA in Politics and Development Studies from School of Oriental and African Studies, University of London.

Informal Justice Provision in Yemen

Aly Mokhtar, Consultant, GRM International

In Yemen, the coexistence of informal justice systems and formal justice system has both benefits and drawbacks. The informal justice system in Yemen has a primary benefit of adjustment of disputes in a setting that does not offend local/tribal culture, e.g. it accentuates compensation and reconciliation rather than sentences and punishments. Additionally in Yemen, the formal judicial system suffers a huge backlog and lacks effective enforcement rules and machineries. Thus, informal tribal settings which expedite dispute resolution are considered to be a mechanism that prevents conflicts and disputes prolongation. On the other hand informal justice systems created tribal customs which could be seen as a major disadvantage because of the following: encouragement of forum shopping, the creation of differentiated laws and rules of interpretation and delays in the creation of a unified legal system applicable to all regions of Yemen. Additionally, the informal justice structures in Yemen are complex and to a certain extent is location specific. The main concern here is the occurrence of an array of legal methods of dispute resolution which are applied differently depending on the particular region of Yemen. Thus, the net product of that checkered pattern is a variety of laws and rules which at some times lead to inequality before the law. The problem becomes more pressing and intractable when tribal custom and laws are in conflict. In order to address the advantages and the disadvantages listed above, the structure, categories, organization and the rules applied of the informal justice systems in Yemen should be deeply explored; this is the focus of that paper. Additionally, this paper will address the implications of the informal justice system on rule of law, access to justice and the formal justice system in Yemen. It will conclude with suggestions to bring informal and formal justice systems in Yemen in harmony to augment access to justice.

20 Taking a shotgun approach to security and justice development programming. A start on the ‘how-to’ of supporting non-state actors

Maria Derks, the Clingendael Institute in the Netherlands

The role and importance of non-state actors and local networks in the provision of security and justice services to citizens in fragile, post-conflict and post-colonial states is becoming well-documented. In spite of concerns regarding human and women’s rights, accountability and tensions with the formal system, empirical evidence of the importance of legal pluralism and the hybrid nature of authority structures for the provision of security and justice to people is growing. Pleas to include non-state actors, at least in the short to intermediate term, in programmes aiming to support the improvement of security and justice service delivery – such as Security Sector Reform (SSR) – abound. However, to date little systematic information on the practical implications for such programmes exists. Based on a literature review, interviews with policymakers, and field work carried out in Colombia, this paper begins to analyse the knowledge on ‘how-to’ incorporate non-state actors in SSR programming in fragile or (post-)conflict situations. Besides highlighting the dilemmas of linking non-state actors to the formal system and incorporating them into SSR programmes, the paper draws four conclusions. First, due to the localized character of non-state security and justice actors and their beneficiaries, a thorough and continuous analysis of the context at micro-level is essential for any programme seeking to include non-state actors. Not all non-state actors are equally legitimate, accessible, effective and efficient everywhere in a state at all times. Programming needs to take stock of these geographical and temporal differences on a continuous basis and be tailored to the specific dynamics and realities in each area. Secondly, because it is impossible for outsiders to attain the required micro-level knowledge, such tailored programming necessitates relying on local experts and organizations for assessments and programme implementation. Thirdly, effective support for non-state actors as part of justice and security development programming entails taking a ‘shotgun’ approach, i.e. funds should be disbursed directly to a large number of small and diverse initiatives. Fourthly, by definition supporting non-state actors involves risks, as a result of the spread of funds and the reliance on local organizations. Thus, it requires finding innovative ways to manage programmes.

Maria Derks is a Research Fellow at the Conflict Research Unit (CRU) of the Clingendael Institute in the Netherlands. The common theme in her work is the translation of research into effective ways of increasing security at the community and individual level. Since she joined CRU in January 2009, she has been working on projects on non-state actors in Security Sector Reform (SSR), the linkages between Armed Violence Reduction programming and SSR, and the linkages between community security initiatives and DDR programmes, amongst others. She has done field work in FYR Macedonia, Kosovo and Colombia, the latter involving a case-study on the opportunities and challenges in supporting non-state actors as part of security and justice development programming. She is also a PhD Candidate at the Norman Paterson School of International Affairs, Carleton University, Canada, where she works on the question how research and policy can be linked to improve SSR programming.

People’s Courts & Jungle Justice. How the RUF’s popular justice failed to address structural social injustices for the underclass of youth in Sierra Leone

Krijn Peters, Swansea University

Now that the once widely canvassed notion of the Sierra Leone conflict as a war motivated by “greed, not grievance” has given way to more informed interpretations, it is time to re-assess the role and meaning of some of the non-state actors in the decade long civil conflict (1991-2002). This contribution will look into the organisational features and justice providing mechanisms of the main protagonist - the rather infamous Revolutionary United Front of Sierra Leone - to consider how it asserted authority and justice within its ranks and in its areas under occupation. Rather than dismissing the movement’s so-called “people’s courts” as empty popular rhetoric or thinly disguised

21 propaganda, or portraying its “jungle justice” as a marker of the movement’s psychopathic and barbaric nature, this paper will argue that these forms of justice must be interpreted as a critique to the structural social injustices generated by the Sierra Leonean state and society, as well as an (albeit failed) alternative to it. It is shown how the Sierra Leonean state (supposedly organised as a modern – Weberian inspired – state bureaucracy) and Sierra Leonean society (organised according to gerontocratic and patrimonial principles) both failed to provide legal and social justice to large segments of its young and often marginalised population. This failure is postulating itself all over Africa, while simultaneously both triggering and being triggered by the so-called “Crisis of Youth”; that is, the inability of young people to progress and become social adults due to enduring economic hardship and continuing gerontocratic control over resources. Responses by young people vary from self regulatory youth organisations and action groups, to (violent) vigilantism or in the case of Sierra Leone, highly destructive “revolutionary” movements. The key lesson to learn from Sierra Leone is to recognise this failure in time and then to address it in order to prevent a second round of violence.

Krijn Peters is a rural development sociologist by background. After he completed his PhD at Wageningen University, the Netherlands, he took up a position as lecturer at the Centre for Development Studies, Swansea University. In 2010 he moved to the Department of Political and Cultural Studies as well as becoming a Visiting Fellow at VU University Amsterdam. Krijn is specialised in armed conflict and post-war reconstruction. Most of his work has focused on the disarmament, demobilisation and reintegration of child soldiers and youthful combatants. He has undertaken extensive fieldwork-based research in the West African region, visiting Sierra Leone for the first time in 1996/97 as an undergraduate student, and working in Liberia in 2000 for Save the Children, UK. He has published widely in a number of journals and edited books. In 2009 Praeger Security International published his co- authored book “War and Children”.

Proximity, Pragmatism & Pashtunwali: Informal Justice at District Level in Helmand Province

Catherine Fearon, International Civilian Office in Kosovo

The paper proposes to describe the backdrop and operation of informal justice provision at district level in Helmand Province, Afghanistan, positing that multiple providers (the government, the elders, the mullahs, the Taliban, the local police) draw on multiple source doctrines (Islam, local custom, state law) in a range of differing circumstances (Government presence, rural or urban setting, strong elders presence or not etc) combine to offer a range of solutions that very much depend on who is the lead local powerbroker. The paper will further describe the efforts of the UK policy in supporting local Community Councils and their Informal Justice Committees, and offer an assessment of the impact such international intervention has had on previously existing indigenous non-state mechanisms. Further the paper will explore the inter-linkage of justice and power: in Helmand the capacity to dispense justice or mediate disputes is inextricably bound up with whoever wields power locally, although this is not unconditional. It will examine which types of disputes are resolved by which actors, and suggest a rationale related to local power dynamics as to why this varies from place to place. Finally the paper will look at how the state at national level fits – or does not – into the situation at grassroots level, which speaks to the (lack of) power of the national level at the local level and the capacity of its judicial representatives thereat. The state has either ignored or taken a hostile policy stance towards informal justice mechanisms at local level and the paper will examine why this is so.

Kate Fearon works as Head of the Mitrovica Office for the International Civilian Office in Kosovo. Prior to this she spent 16 months working as Rule of Law Governance Advisor to the Helmand Provincial Reconstruction Team, based at Lashkar Gah in Aghanistan. Her portfolio there included Community Engagement in policing and supporting the development of Justice and Security Sub-Committees of 4 local councils. She previously worked in

22 Bosnia and Herzegovina for the OHR and was a founder member of the Northern Ireland Women’s Coalition participating in the all party talks that led to the Good Friday Agreement.

Experiences on informal justice and security provision in a fragile state environment. The Case of Nepal

Lars Peter Lopez Christensen, Mukunda Kattel and Rene Taus Hansen, DANIDA’s Human rights and Good Governance Programme, Nepal

In 2006 Nepal emerged from a 10-year long civil war, which left an estimated 13.000 men and women dead and more than 100.000. displaced. The security and justice situation was under considerable strain during the armed conflict with many killings, disappearances, rapes and other gross violations of human rights, committed both by the Maoists and the State. Parallel security and justice systems were established in the many areas of the country, which were controlled by the Maoists. A Comprehensive Peace Agreement (CPA) was concluded in November 2006 and in April 2008 elections were held to a new Constituent Assembly (CA) cum Parliament. The Maoists became the biggest party in the CA. With the CPA the violent conflict between the Maoists and the state came to an end, but other types of insecurity emerged rapidly, especially in the southern part of the country, bordering India, called the Terai, where more than 100 armed groups are operating. The paper will analyse the breakdown of security and justice in the Terai region of Nepal and see how it relates to the armed conflict, structural imbalances and some recently emerged dynamics. Complex relationships exist between non-state “spoilers” and non-state, and state. “providers” of security and justice. Politics has been criminalised and crime has been politicised in this fragile environment, where the absence of effective state structures has nurtured a culture of impunity and created a challenging situation in terms of security and justice. In addition, the paper will focus on the tensions between the concepts of “security” and “justice” and explore factors that should be taken into account when seeking to improve either of the two. The paper will make specific recommendations for intervention in the security and justice field in a fragile environment (the case of Nepal), and argue that no one size fits all. Interventions will always have to be context specific, historically anchored, address structural imbalances and include both short-term measures (quick wins) and longer-term strategic initiatives.

Lars Peter Lopez Christensen; Programme Coordinator, Human rights and Good Governance Programme, Nepal. He has worked in Nepal from 1988-991 and again since November of 2007. He is a political scientist, who has devoted his entire work life to international development cooperation. He is able to compare the situation in Nepal with the post-conflict developments in Mozambique, where he was posted for more than 4 years (2003-2007). Mukunda Kattel; Human Rights and Justice Advisor, Human rights and Good Governance Programme, Nepal. He has been with Danida since 2005. Previously he worked with a number of Regional and National NGOs, including Nepal’s leader human rights organisation Informal Sector Service Centre (INSEC) and Thailand-based Child Workers in Asia (CWA). He holds Master’s degree in Sociology from Tribhuvan University, Nepal. Rene Taus Hansen, Human Rights and Conflict Transformation Advisor, Human rights and Good Governance Programme, Nepal. Rene Hansen has worked as senior advisor to the Permanent Secretary in the Ministry of Justice in Zambia and was leading the US Government human rights and democracy programme in Zimbabwe. He holds a M.Sc. Degree in economics from University of Copenhagen and an M.A. in development economics from University of Manchester and has a background as military officer in the Danish Air Force.

The Politics of Customary Law Ascertainment in Southern Sudan Cherry Leonardi (Durham University) and Deborah Isser (USIP)

23 Since its establishment five years ago under the terms of the Comprehensive Peace Agreement (CPA), the Government of Southern Sudan (GOSS) has struggled to create a justice system that reflects the values and requirements for justice of the people of Southern Sudan. For both political and practical reasons, the role of chiefs’ courts and customary law has a central place in this endeavor. A key question facing GOSS is how to define the relation between these courts (and the ideas about law that they embody) and the wider legal system of Southern Sudan and how to ensure equal access to justice and protection of human rights in doing so. Key Southern Sudanese policy makers have put forward the concept of “ascertainment”, whereby the customary laws of the various ethnically-defined groups in Southern Sudan would be identified and recorded in written form. The idea of ascertainment is that these written versions of indigenous legal practise would serve as a basis, variously, for direct application, harmonization, and modification of the laws in question. This paper will draw on recent field research and policy consultations conducted by the authors to examine the various – and sometimes conflicting – motivations behind the notion of ascertainment. It will argue that the notion of ascertainment misunderstands the fundamental nature of customary justice in Sudan, which is defined more by practice and process than by readily recordable laws. The paper will analyze how ascertainment might impact the delivery of justice in practice, and will propose alternative approaches that are more likely to achieve desirable objectives.

Cherry Leonardi (PhD, History) is a Lecturer in African History at Durham University. Her research and publications since 2001 have focused on the historical and contemporary role of chiefs in Southern Sudan, and what this reveals about governance, state-society relations and political and judicial cultures. She is currently writing a book on this subject based on a combination of fieldwork, oral histories and archival sources. Deborah Isser (JD) is Senior Legal Advisor at the United States Institute of Peace, where she directs the project on Customary Justice and Legal Pluralism. Her work has involved field research, policy analysis and facilitated dialogue in Liberia, Southern Sudan and Afghanistan. She is currently developing a focus on women’s access to justice in legally plural environments. She is the editor of a forthcoming volume of case studies examining how customary systems contribute to the rule of law in post-conflict societies.

Adapting to a Shifting Justice Landscape: International Intervention and Informal Justice in Afghanistan

Noah Coburn, United States Institute of Peace (USIP)

In Afghanistan during the past 18 months there has been a rapid increase of interest in and funding for projects aimed at the informal justice sector by the United States government, NATO and other international donors. These projects range for large USAID funded programs that attempt to link the formal and informal system to more ad hoc programs set up by the international military at forwarding operating bases where there is limited to no Afghan governmental presence. Designed to increase access to justice and, in turn, stabilize areas, some of these programs have shown considerable promise, while others seem to complicated local political tensions. Historically the informal justice sector in Afghanistan has lacked formal links to state, while maintaining significant informal ties between state officials and local leaders. This has allowed the informal justice sector to adapt to changing political conditions and maximize the autonomy of local leaders. Ultimately, this shifting balance between the formal and informal sectors has benefited both government officials and local leaders. Internationally sponsored programs, however, introduce another layer of complexity. Many internationally sponsored projects attempt to formalize justice in areas where there is a great diversity of informal mechanisms, using both international and national staff that often do not have the personal relationships or knowledge that local government officials do. In some cases local actors have used this lack of knowledge to their benefit. Based on USIP’s initial findings, this paper asks: what is the initial impact that these projects have? What is the relationship between access to justice and stability during the recent surge of troops in southern Afghanistan? To what extent can internationally sponsored projects shape justice systems that are based

24 on highly localized relationships? How does the bureaucracy and decision making practices of the international community in Kabul shape the impact of these projects? How can money and a rapid increase in funding corrupt local practices? With all these questions in mind, is it possible to establish best practices? The data presented comes from a series of pilot districts managed by USIP across 6 provinces representing a range of security conditions, ethnic compositions and government penetration, as well as field visits to observe other internationally sponsored programs in the south, southeast, east, west, north and center of the country. The United States Institute of Peace has been working on the informal justice sector in Afghanistan since 2002.

Noah Coburn is a traditional justice specialist for USIP in their Kabul office. He has a PhD in socio-cultural anthropology from Boston University and has been conducting research in Afghanistan since 2005. Before working for USIP he lived in a village north of Kabul studying local political disputes and conflict resolution.

Under International Authority

Lise Phillipsen, Copenhagen University

In the post-conflict setting of Sierra Leone the centrality of external actors as producers of knowledge is vivid. In this paper, I argue that through peacebuilding strategies the UN is able to establish new grounds for exercising power by positioning itself as an authority in a realm where a vacuum of power exists. By aiming to secure the peace, rather than just maintaining it, the claim of neutrality is replaced with a normative claim of how to build a state. Based on field work in the United Nations Integrated Peacebuilding Office in Sierra Leone, the paper look into what drives the UN peacebuilding effort, both in terms of social patterns and political values. Looking at the internal dynamics of this integrated approach to consolidating peace and security, I explore how the practice of peacebuilding functions to inscribe the UN as a main authority in the country by instating certain models for resolving conflict, establishing order, and creating security. In particular, I focus on how ideas about good governance, security, and humanitarianism get circulated, reproduced, and subverted through the training and monitoring of local actors by looking at the everyday practices, main documents, and meetings surrounding the peacebuilding effort. The analysis shows how such intervention based on specific political values and practices works to establish specific systems of power, authority, and legitimacy as natural while rendering others unthinkable. This is used to question how such instalment of UN authority in effect constitutes a hierarchy where the people of Sierra Leone are subjects far distant from where power is exercised: a practice that creates both problems of democratic accountability and of autonomy. At the same time the analysis sheds light on how we might see the power of the UN unfold in the future.

Lise Philipsen is PhD Fellow at Centre for Advanced Security Theory, University of Copenhagen. She holds an MA in International Relations and Philosophy. Her research focuses on how new security practices in the United Nations challenge the way security is normally understood by refusing to construct a clear and unambiguous narrative of a threatening Other. Instead, the UN security logic builds on an opposition between the much broader categories of pluralism, humanism, solidarity, and universalism on one side, and realism, belligerents, and nationalism on the other. She is currently planning an in depth field study of how such rethinking of security is reflected in peacebuilding practices in the United Nations Integrated Peacebuilding Office in Sierra Leone. Further, she is working on an article on how such challenges to the concept of security can be incorporated into the theory of securitization.

25 Theme 5

International support for informal justice or non-state justice systems - Some development agency political pitfalls for programme and project production

Dr. Markus Weilenmann, Office for Conflict Research in Developing Countries Zurich-Ruschlikon, Switzerland

For most development agencies, “informal justice”, “traditional justice” or “non-state justice systems” are considered as handy umbrella terms referring to all those institutionalised entities which settle conflicts outside of the officially accepted and formally legitimized state order. When designing projects or programmes for the promotion of justice and human rights most development agencies do not however refer to an analytical model allowing comparison of the post-colonial state law of developing countries with other legal concepts. Instead, a dichotomizing and hence often over-simplified approach is preferred. However, there is a risk of western societies and their organisational forms being considered as idealistic models. These models then often contour the problems of developing countries. But what is in the beginning just a figure of thought risks shifting in time to become an objectified (and thus misleading) assumption. This accentuates the already value-loaded relationship between the multiple and often competing legal orders and underscores at several points an ethnocentric understanding of culture in referring to the Descartian antagonism between “(irrational) culture” and “(rational) plan”. In my paper I will outline such pitfalls and the resulting consequences which typically characterize the project and programme production of bi- or multilateral development agencies. I will also refer to selected case studies from my own consulting services that I have rendered for a multitude of international development agencies operating in the field of good governance and legal aid in Sub-Saharan Africa.

Weilenmann, Markus, PhD., born 1954; legal anthropologist. Since 1978 several field researches in the Great Lakes area of Africa. Head and founder of the "Office for Conflict Research in Developing Countries"; since 2006, the office is affiliated with the Project Group Legal Pluralism of the Max Planck Institute for Social Anthropology (D- Halle). Between 2009 and 2009, I was the executive secretary of the international commission on legal pluralism (IUAES). Focal points: demand-oriented research and consultancy on conflict mediation and legal and social politics in Subsaharan-Africa. Author of many scientific articles and of the book „Burundi: Konflikt und Rechtskonflikt“, 1997, Frankfurt am Main: Brandes & Apsel.

A Practitioner's Perspective on Non-State Actors

Victoria Walker and Ana Kantor, Geneva Centre for the Democratic Control of Armed Forces

The idea of Security Sector Reform emerged in 1999 from a Western understanding that security is provided by the state (Albrecht & Burr, 2006). As the concept evolved over the subsequent decade, there has been a growing recognition by donors and the policy community of the importance of non-state actors (NSA) in justice and security service provision (DFID, 2004; Wojkowska, 2006; Scheye, 2010). Despite the increased involvement in this area, very little is available in terms of practical lessons on how to engage with these actors (GSDRC, 2009) and the donor community still faces challenges on how to support NSAs effectively. Moreover, the way in which the International Community is structured favours a state/state relationship and donors feel uncomfortable engaging with non-state actors, leading to this area often being overlooked. Whilst important throughout the programme cycle, a failure to include (a) an accurate understanding of the systems in place and (b) where citizens go to find security and justice during the assessment phase means that any subsequent programme is likely to undermine, rather than enhance, access to justice and security, particularly for the most vulnerable members of society. Based upon this

26 understanding, this paper will draw on a workshop involving field practitioners to provide a practical experience perspective to the academic discourse that bridges several of the themes of the Conference Paper. The workshop will gather the relevant experience of practitioners who have vast experience working with NSAs. The workshop will focus upon identifying key criteria and practical methodologies to gather relevant information regarding non-state structures and relationships to be able to analyse and plan programmatic support, taking into account the reality of donor constraints of time and cost. Areas that will be covered include: (a) mapping providers of informal delivery of justice and security; (b untangling the political dynamics within informal systems and obtaining information on the balance of power between state and non-state providers; and (c) analysing opportunities as well as risk factors from engaging directly with non-state security and justice providers; and (d) gathering lessons from programmatic experiences of working with informal security actors.

Victoria Walker is an Advisor on Security Sector Reform (SSR) within the International Security Sector Advisory Team, part of the Geneva Centre for the Democratic Control of Armed Forces, where her work includes developing guidance on best practice for SSR assessments and providing field advisory support to donors engaging in SSR. She has previously worked in field missions with the EU in Rule of Law, conflict management, and political and security analysis, as well as holding a commission in the British Army. Victoria has an MSc in Development Management and an MA in Social Sciences from the Open University in the UK and an LLB in Law from Kings College London. She is currently studying for her MSc in Security Sector Management at Cranfield University. Ana Kantor is currently an associate expert for ISSAT. She was previously a Project Officer at ISSAT, seconded by Sweden. Ana has also worked as a Security Sector Reform Analyst at the Swedish National Defence College. In that capacity, she worked on projects related to policing in post-conflict settings, non-state security actors, and the development of SSR assessment methodology for the EU. She has also worked on disarmament issues for the United Nations in New York, on SSR research at the Bonn International Centre for Conversion (BICC), and on children’s rights at the Organization of American States in Montevideo, Uruguay. Ana holds an Honours Bachelor of Arts, with a double major in Peace and Conflict Studies and Ibero-American Studies, from the University of Toronto, and a MA in International Studies from the Department of Peace and Conflict Research at Uppsala University.

Local Justice Systems and State-Society Relations: Trends in Village Justice in Maluku and Aceh

Matthew Zurstrassen, World Bank

This paper draws on quantitative and qualitative research that was conducted in Maluku and Aceh provinces of Indonesia over the course of 2009-2010. Both of these provinces have a recent history of conflict. Maluku experienced sectarian conflict from 1999-2002. In Aceh, a 30-year separatist conflict claimed 15,000 lives ending in a peace agreement in 2005. The paper will firstly examine the types of disputes experienced by communities and dispute resolution trajectories. Despite variations between provinces, at the core of the majority of disputes are issues directly affecting community livelihoods. Chief amongst these are land disputes, theft, the distribution of development assistance and family issues. Village governance institutions also play the predominant role in dispute resolution processes. This can be problematic given a proportion of disputes involve village officials. Building on the dispute trajectories, the paper will argue against distinguishing between the ‘state’ and ‘non-state’. Instead, actors will be presented as lying along a spectrum where legitimacy is derived from various sources, such as the law, local government recognition and community legitimacy. The courts can be assumed to represent one end of the spectrum, where power is derived primarily from law. At the far, other end of the spectrum are neighbours and family members who have no formal recognition but are trusted and easy to access. Village governance institutions, be they village authorities, local customary elders or religious leaders obtain legitimacy from a combination of these sources. As do local government actors and the police, although they reside closer towards the state recognition end of the spectrum. The role of all these actors, and their source of legitimacy, overlap and interact. For example, even

27 where disputes enter the formal system, and this remains the exception, village governance institutions play a key referral role. The paper will argue that there indications of a trend in convergence of village level actors in both Maluku and Aceh. The trend can be seen from both increased state definition of the role of village officials as representatives of customary leadership and customary leaders identifying positions of village official authority as their own. In the former case, examples include provincial regulations in Aceh that automatically define the village head as a customary leader. In the later, there are numerous examples from Maluku of customary bodies playing the determining role of appointing village heads. The paper will examine what consequences this may have on the quality of justice communities are able to receive. Finally, the paper will, through case examples, highlight how these village justice systems and trends affect development processes. This will include the examination of linkages between these systems and distribution of resources, primarily related social protection and poverty reduction programs.

Matthew Zurstrassen was, until recently, a Social Development Specialist for the World Bank in Jakarta and Team Leader of the World Bank’s Justice for the Poor program. He has undertaken extensive research on local justice mechanisms in Indonesia. He has also managed programs covering access to justice issues, anti-corruption, local government regulations and formal justice sector reform initiatives. Prior to his work with the Justice for the Poor program he managed a program on post-conflict access to justice in Sri Lanka and conducted field research on reintegration dynamics in post-conflict Aceh. His publications include: Women’s Access to Justice in Indonesia: Case Study from Three Provinces (in Indonesian) and The GAM Reintegration Needs Assessment. He has worked on access to justice and legal reform issues in Indonesia, Sri Lanka, Vanuatu, Vietnam, Papua New Guinea and China.

The contribution of non-state actors to local state formation

Ann M Fitz-Gerald and Christian Dennys

The evolving policy discourse and practice in linking statebuilding, peacebuilding and stabilisation has exposed the increasingly important role played by non-state actors in weak and fragile states. Arguably, this trend is linked to the complex challenges in developing local approaches to state formation. Intervention experience to date indicates the relative ease in appointing political representatives and pursuing capital city-based institution-building objectives. However, this process can become significantly undermined by a lack of strategic level engagement in the more rural areas, often where the greatest instability and security vulnerabilities are experienced. This chapter analyses the evolving debate on state formation and argues that efforts supporting state formation have been based largely on Westphalian approaches and, to a lesser degree, ideas rooted in social anthropology. These approaches focus on support to the central political elite, and not on capacity at the periphery. The authors argue that, notwithstanding the contribution that stabilisation efforts make to local state formation and local political legitimacy, stabilisation remains an underdeveloped concept devoid of any grounded theory based on the global statebuilding experience over the past two decades. The paper then draws distinctions between the degree of human capacity, systems and national awareness which exists between the centre and the periphery, the latter of which is based on the both the ethos and agenda of nonstate groupings. In the absence of a strategic approach supporting stabilisation interventions, a ‘project’-driven’ approach to local state formation is often pursued. The paper proposes a framework for strategic stabilisation interventions which supports the development of local political legitimacy.

Christian Dennys currently doing his field work for his PhD in Stabilisation from Cranfield University / Defence Academy focusing on Afghanistan and Nepal. Christian is also an Advisor to the Office of National Security Council in Afghanistan on the development of Afghanistan’s National Security Policy and Strategy. He has worked as a policy adviser and researcher with several organizations including Oxfam and Amnesty International in and around Afghanistan since 2003 and more recently has been working with CPAU an Afghan non-governmental organisation which specialises in conflict resolution and research with parties in the ongoing conflict. Earlier in 2010

28 he completed a project on the Drivers of Reintegration to inform the design of the Afghanistan Peace and Reintegration Programme. His Bachelor and Master's degress are both from the School of Oriental and African Studies (SOAS), University of London, in Arabic and Persian and Violence Conflict and Development respectively.

It Ain’t the Non-State: Legal Pluralism and Multiplicity in Practice in Sierra Leone and Columbia

Eric Scheye, Private Consultant

The conference, Access to Justice and Security: Non-State Actors and the Local Dynamics of Ordering, presumes that “non- state actors provide justice and security to the vast majority of people in the Global South” with the public goods of justice and security. This presumption is empirically incorrect and causes political, conceptual, and programmatic confusion and ineffectiveness. It is neither the ‘state’ nor the ‘non-state’ that provides the preponderance of justice and security, but rather the institutions and structures that exist in the space between the two, which are constitutionally and legally authorized to deliver justice and security services. For example, the predominant provider of justice and security in Sierra Leone -- and in Africa in general -- is what has been characterized as the ‘second state.’ The ‘second state’ is the constellation of polities and structures mandated by the ‘formal state’ to distribute a range of public goods and services, including justice and security (Mozambique, Malawi, southern Sudan, Liberia, Angola, etc). These polities are based upon the role and functions of traditional societal authorities -- village elders, tribal chiefs, etc. and are as integral to the formal state as are Supreme Courts, Parliaments, and custom agents. In Sierra Leone, the ‘second state’ includes the entire Chiefdom Administration, including the local courts, which is, reputedly, the most ‘trusted’ and legitimate public authority. In Colombia, a comparable situation exists, given that the formal state does not deliver much justice or security in numerous communities, where the preponderance of the population lives and the citizenry does not have confidence in the formal state agencies (national police service; judiciary and the courts) and/or where those agencies have limited presence and effectiveness. In these neighborhoods, a significant proportion of justice and security delivery is legally delegated by the ‘formal state’ to local providers, such as elected justices of the peace, elected community associations, and/or indigenous organizations. Even though these institutions and associations cannot be considered ‘a second state,’ they are constitutionally and legally part of the ‘state,’ but are not appropriately integrated into wider state structures and have been consistently deprived of the needed resources to deliver effective service. By comparing these two countries Sierra Leone and Colombia from exceedingly different political contexts, histories, and legacies, based upon field work conducted in 2010, this paper raises the issue of legal pluralism, which is the prevalent form of jurisprudence in the global south. The issue is not merely an academic one, but fundamentally a political and programmatic one, in which there is a contestation over power and self-interest. Furthermore, by comparing Sierra Leone and Colombia, this paper will describe the space between the ‘state’ and the ‘non-state’ and detail donor-supported initiatives that can be undertaken in these spaces in-between -- support to neighborhood watch groups, justices of the peace, community safety councils (local police partnership boards), paralegal and mediator organizations, etc.

29 Theme 6

Young but not Alone: Youth Organizations and the Politics of Security and Justice Provision in Fragile States

Louis-Alexandre Berg, United States Institute for Peace (USIP)

When are non-state actors most likely to improve justice and security for vulnerable populations? In states where justice and security institutions are weak, donors are increasingly channeling assistance to traditional, religious, and other community leaders to reach vulnerable groups. While non-state mechanisms may be more accessible, they may also fuel exclusion, discrimination and even violence. This challenge is particularly acute for youth, who are both victims and perpetrators of insecurity in fragile states. While increasing access to security and justice for youth is often crucial for broader peace and security in fragile states, the most accessible non-state actors may also be the most political, and may contribute to the exclusion or manipulation that leaves youth vulnerable to violence. This paper addresses this tension by analyzing how the political position of non-state justice and security providers affects their treatment of vulnerable groups. I focus on youth organizations, a crucial but largely ignored provider of security and justice which, like most non-state providers, often play a political role. Drawing from studies of social and political networks, I show that where non-state actors are able to monopolize the provision of services, they are most likely to use this position to advance their political or economic goals at the expense of vulnerable groups, while the presence of multiple and overlapping channels to access services makes state and non-state actors more likely to protect their rights. I compare three cases of non-state actors who provide security and justice to youth, with varying effects on their rights and on security more broadly: motorcycle riders associations in Sierra Leone; Martial Arts Groups in Timor-Leste; and Rara groups in Haiti. This comparison sheds light on the conditions that affect when non-state justice and security providers are more or less likely to protect the rights of vulnerable groups. It also points to areas where donors might address some of the challenges faced by youth and vulnerable populations in weak states, by working with a broader range of non-state actors, and by supporting multiple and overlapping channels and mechanisms to access essential services.

Louis-Alexandre Berg is a Jennings-Randolph Peace Scholar at the U.S. Institute of Peace and a PhD Candidate at Georgetown University, where he conducts research on the politics of security sector reform in post-conflict states. He previously served as Rule of Law Advisor in the U.S. Agency for International Development’s Office of Democracy and Governance. He has designed, managed and evaluated programs focused on justice sector development, police assistance and anti-corruption in Nepal, Pakistan, Jordan, the Palestinian Territories, Yemen, Bosnia-Herzegovina, the Democratic Republic of Congo, El Salvador and Haiti. He has worked for the State Department Office of War Crime Issues, conducted research on post-conflict rule of law for the U.S. National Security Council, and worked for the U.N. Development Program in Sierra Leone. He worked on peace building and regional security in the Middle East with Search for Common Ground and Seeds of Peace. Mr. Berg holds a B.A. in international relations from Brown University, and an M.P.A. in international affairs from Princeton University.

Community justice, access to justice and legitimacy. An ecology of justices in the city of Maputo Sara Araújo, Centre for Social Studies, University of Coimbra It is established today that legal pluralism has always been present in every society, but it is also true that it can take on very different forms and carry diverse social and political meanings. The reality in Mozambique is extremely rich and interesting in respect of the quantity and diversity of legal orders and dispute resolution fora that operate in the field, as well as of the complex interrelations established among them. In this paper, based on a field work conducted

30 between 2008 and 2010, I explore the diversity of the existent dispute resolution fora in the capital city of Mozambique, showing the complexity of what I designate by community justices and the role these play in promoting or negating citizen’s access to justice. Underlying my research is Boaventura de Sousa Santos’s Sociology of Absences and Emergencies, an epistemological proposal conceived against the invisibility of diversity. Accepting the author’s challenge I try to promote an ecology of justices confronting the liberal conception of law and justice with the diversity of law and justice that exists in the world. Thus my concept of community justice is broad and flexible. It includes every form of justice which use conflict resolution mechanisms different from those traditionally favoured by the liberal State. In this way I try to avoid the exclusion of the diversity just because it does not fit in a previously established closed definition. In Maputo I found a multiplicity of community justices which I will explore in this paper. Some of them were created or recreated by State initiative; others are old traditional institutions performed by local people with or without state support; others are new and suffered different kinds national or international impulses (from NGOs, from churches or from private capitalist sector). All of them try to look for legitimacy in their proximity to community, combining it in different ways with other legitimacy sources like global or State support. Sara Araújo is researcher at the Centre for Social Studies – University of Coimbra. She is a PhD student in the Doctorate Programme «Law, Justice, and Citizenship in the Twenty First Century» at the University of Coimbra. Her dissertation is on access to justice and community justices, a comparative study for the Portuguese and Mozambican realities. She was part of the Permanent Observatory for the Portuguese Justice, having participated in a few research projects, and has been a member of the bi-national research team for the Revision of the Judicial Organization of Mozambique. Since 2008, she is an associated member of the Centre for African Studies of the Eduardo Mondlane University. She concluded her master degree with the dissertation «Legal Pluralism and access to justice. The role of community justices in Mozambique».

Legitimacies in the interfaces of state and non-state governance. Exploring the case of Somaliland

Louise Wiuff Moe, University of Queensland

This paper explores the interaction and hybridization of different types of political legitimacy (state and non-state) in the case of sub-national state formation in north-western Somalia, known as Somaliland. The issue of legitimacy has received increasing attention as a key component of sustainable governance and political order. Yet, political legitimacy is still primarily assessed with reference to particular normative standards derived from an ideal type of sovereign liberal-democratic statehood. Consequently, non-state actors that derive authority and power from sources of legitimacy outside the legal-rational sphere are commonly cast as a challenge, obstacle or even threat to security and political order. This perspective is particularly salient within the dominant discourse of state fragility. The case of Somaliland invites a different outlook. In this region, political institutions and structures of governance have been constructed through bargain processes and formation of alliances cutting across the ‘state/non-state’ dichotomy. Building upon, and combining, diverse sources of order and authority, including militias, customary authority and rational-legal (sub)state authority, Somaliland has since 1991 emerged as a relatively peaceful political unit functioning within the borders of Somalia. The paper focuses on the interactions (complementary and contradictory) between different spheres of legitimate authority and explores how these processes have shaped and reshaped Somaliland’s emerging institutional framework as well as local everyday practices of security and justice. The analysis reflects the author’s recent fieldwork in Somaliland, and her current PhD work. Conceptually, the paper draws on the framework of Hybrid Political Orders and its attendant concepts of hybrid and grounded legitimacy.

Louise Wiuff Moe holds a masters degree in Global Political Economy and Conflict Studies from the University of Stellenbosch under an exchange agreement with the International Peace Research Institute, Oslo (PRIO). In 2008, Ms Wiuff Moe was a visiting researcher at the Academy for Peace and Development in Somaliland. Subsequently, she worked as a junior researcher for the Finnish Institute of International Affairs and the Crisis Management

31 Initiative in Helsinki. Currently Ms. Wiuff Moe is a Ph.D. candidate at the Australian Center for Peace and Conflict Studies, University of Queensland. Research areas: peace processes; political legitimacy and governance capacities in fragile settings; interfaces between state and non-state forms of governance.

Theme 7

Spinning the web of legal pluralism in Vanuatu

Dr Miranda Forsyth, Australian National University

Based on five years of detailed fieldwork, this paper will first describe the current operation of the kastom system of conflict management in Vanuatu and its interaction with the state system. Vanuatu is an archipelago situated in the region known as Melanesia in the South Pacific. The kastom system is a non-state system of managing conflict that is today administered by community chiefs and is responsible for dealing with a large percentage of the disputes that occur in both rural and urban areas. The second part of the paper will examine a variety of ways in which some key actors in the kastom system and the state justice system, through international donors, have tried to build bridges between the operation of both systems in the past five years. These include, on the kastom side, the writing of kastom “Constitutions” and the formalizing of the levels of the kastom system in some provinces, and on the state side, changes to the Penal Code to require customary settlements to be taken into account by state judges in sentencing, the creation of Community Justice Supervisors and the launching of the Kastom Governance Partnership project. The paper will identify the complexities and difficulties involved in these developments as well as their strengths and lessons to be learnt for the future. In doing so it will address issues such as the contested nature of “tradition”, especially in regard to the treatment of women and children, and its relevance to customary norms and practices today; the challenges associated with the fragmented nature of kastom institutions in contrast to the state (and the associated danger of the ideology of state centralism); and the benefits and drawbacks of a piecemeal approach to change as opposed large-scale institutional reform. This paper will cut across a number of themes of the conference. Its main focus will be on theme seven, but it will also address the issues of terminology raised in theme five and the methodological questions in theme eight.

Dr Miranda Forsyth is currently a Visiting Fellow at the Australian National University. She worked in Vanuatu as a Public Prosecutor and as a Lecturer in the School of Law at the University of the South Pacific for the past eight years. Her doctoral research into the kastom system in Vanuatu and its relationship with the state criminal justice system, A Bird that Flies with Two Wings: Kastom and State Justice Systems in Vanuatu, was published as a book by ANU e- Press in 2009 (http://epress.anu.edu.au/kastom_citation.html).

New Authorities: Relating State and Non-state Security Providers in South African Improvement Districts

Julie Berg and Clifford Shearing, University of Cape Town

The marked retreat on the part of the state from direct responsibility for the provision of security and other public services has brought about a concomitant shift towards the outsourcing of such public services. Closely related to these neo-liberal developments has been a process of pluralization that has seen security governance being

32 undertaken outside of state processes through the provision of security services to non-state auspices (or clients) by non-state providers. This paper locates, within this context, the widespread emergence of ‘Improvement Districts’ which were devised as a response to urban decay, using the special capacities of non-state actors to bring about locally focused regeneration. These districts are formed through an arrangement with local governments in which an approved local group is authorized to use local rates to respond to ‘crime and grime’ issues. This paper interrogates the implications of these developments for security governance. In particular, it seeks to highlight the process by which Improvement Districts are created and organised; how they assert authority on public spaces; what types of (alternative) social ordering they promote and how this affects access to security as well as state / non-state relations. The paper will also discuss, more broadly, the contribution of new authorities to innovative public governance.

Julie Berg is a senior lecturer in the Public Law Department at the University of Cape Town and is associated with the National Research Foundation African Security and Justice Programme at the Centre of Criminology. Julie qualified with a Master of Social Science in Criminology at the University of Cape Town and is currently undertaking a PhD on the regulation of polycentric security governance in South African improvement districts. Julie's research interests lie primarily in the functioning; regulation and accountability of non-state security governance – particularly the private security industry and urban improvement districts. She is also interested in public-private partnerships between institutions and agencies involved in security and policing, such as the development of these partnerships; how they are regulated; and the convergence of state and private techniques of security provision. Julie is currently embarking on a programme focusing on security governance during mega events. Clifford Shearing is the Chair of Criminology and Director of the Centre of Criminology, Faculty of Law, University of Cape Town. He also hold the South African National Research Foundation Chair in Security and Justice and is an NRF A rated scholar. Clifford is a well-established and internationally recognised scholar in the field of policing and security. His research and writing has focused on the development of theoretical understandings that can be used to enhance the quality of security and justice governance. Clifford has made many contributions to policy development for security strategy. The most recent has been as a member of the "Jamaica Constabulary Force (JCF) Strategic Review Panel" 2007 – 2008. Previous policy contributions include developing policing strategy with the Canadian Law Commission, the Patten Commission on Policing for Northern Ireland and as a member of the Goldstone Commission playing a role in developing the strategy for policing South Africa's first democratic elections.

Establishing 'a collaborative institutional framework' in Kenya

Yoshiaki Furuzawa, Hiroshima University

Following the riot triggered as a result of the 2007 presidential election in Kenya, the Commission of Inquiry into the Post-Election Violence (PEV) concluded that the police forces were responsible for 35.7% of the total deaths during the PEV (GoK 2008: 342 and 346). There emerged “a strong feeling that the level of the Post-Election Violence (PEV) would have been minimized had the police responded in a professional, non-partisan manner” (GoK 2009a: 1), and the National Task Force on Police Reform (Ransley Task Force) was convened on May 18, 2009. The final report of the Ransley Task Force was submitted on November 3, 2009, and its recommendations can be characterized as the de-politicization of the police forces through establishing oversight mechanisms such as the Independent Policing Oversight Authority. While it is indispensable to address the accountability aspects of the police force in the security sector reform (SSR), the police reform only covers a part of the policing structure where “private security providers are a significant player” (GoK 2009a: 183). While not necessarily under the label of SSR or police reform, it is interesting to point out that the Government of Kenya (GoK) is in a process of creating “a collaborative institutional framework between state and non-state actors” (GoK 2009b: 6), “[recognizing] the critical role of traditional conflict resolution mechanisms” (GoK 2009b: 28). The National Steering Committee on Peacebuilding and Conflict Management is in a process of establishing a hybrid institution that brings together traditional and formal mechanisms called the Peace Committee model - a community representative institutions inspired from experiences in Wajir [a northern part of Kenya]. The aim of the paper is twofold: (i) explains

33 experiences in Wajir and how it is reflected in the national policy framework; and (ii) illustrates how Peace Committee is meant to fill in the gaps left behind by the police.

Yoshiaki Furuzawa, Is currently conducting a two-year research concerning police reform and policing funded by the Japan Society for the Promotion of Science (JSPS). He received the master’s degree in conflict resolution from the University of Bradford and the bachelor’s degree in international relations from the University of Tsukuba (Japan). In the past, he was a visiting research fellow with The Carter Center (2005) and the Centre for Peace and Conflict Studies, University of St. Andrews (2010). He is PhD candidate at the Hiroshima University (Japan).

Theme 8

Finding the Heartbeat: The Case for Peace Operations to Engage with the Political Bryn Hughes, University of Queensland

The success of peace support operations relies not on mustering the right level of resources or in honing the technical and managerial skills of interveners and aid recipients alike. It depends on engaging adroitly with the ‘political’. This means understanding how power and legitimacy – in their many guises – function and are maintained. Such awareness gets to the heart of the matter, telling us how a society ticks. This newfound political awareness however cannot afford a blinkered view. If little more than state actors and formal institutions are considered, the risk remains that external assistance will engender the kinds of formidable resistance that have so far plagued the conventional state-centric, technical focus. This paper builds a case to elevate the political to the forefront of peace operations thinking, with particular emphasis on the relationship between state and non-state justice sector mechanisms. Supported by recent fieldwork in the Marshall Islands, it makes a particular argument based on the broad contention that a comprehensive understanding of how a society is ordered enables security and development cooperation to identify the ways and means to improve situations in culturally appropriate and sustainable fashions. What is more, this reoriented approach promises significantly enhanced efficiency and effectiveness by harnessing rather than bungling existing endogenous resources.

Dr Bryn Hughes currently manages a research project concerning the performance of international policing. He has lectured courses on international relations subjects, and his research interests include international policing and peacekeeping and critical security. His recent publications include: ‘The Rule of Law in Peace and Capacity Building Operations: Moving beyond a Conventional State-Centred Imagination’ in The Journal of International Peacekeeping 13: 4, 2009; and ‘Moving beyond rethinking the ‘state of the state’: to the challenge of reshaping international contributions to peace operations’ in Conflict Security & Development 10:3, 2010.

34 3rd November – Closed day for academics and paper presenters

The violence of securitization. Dynamics of order and disorder in a Mozambican city

Bjørn Enge Bertelsen, Dept. of social anthropology, University of Bergen, Norway

Building on long-term anthropological engagements with peri-urban and urban poor neighbourhoods in Chimoio, Mozambique, this paper seeks to analytically re-frame the wide range of current violent forms of justice and security. These range from and span police-related death squads to spates of lynchings, on the one hand, and the highly dynamic community courts and the creation of forces of community police on the other. In the paper an argument is made that the occurrence of such forms is irreducible to oft applied templates of globalised neoliberal reformations of the economy as many of the forms have developed along complex, non-global and global trajectories. Further, the predominantly contested and frequently violent dimensions of the Mozambican legal landscape make the application of glossy terms such as ‘legal pluralism’ analytically unrewarding to many contexts. Instead, this paper argues for the need to analyse the (postcolonial) state form empirically and theoretically in order to understand how global and non-global dynamics are enmeshed in dynamic, creative and – very often – antagonistic ways. In urban Mozambique, this paper argues, these dynamics continually and violently order, re-order and ‘dis-order’ urban spaces and its inhabitants and livelihoods. This creates a paradoxical situation in which a globally increasing concern for ‘security’ in many postcolonial contexts – in Mozambique often implemented in governance in part due to donor influence and pressure – breeds a multitude of actors, networks and practices that often work against aims of both reducing violence as well as increasing popular experiences of protection and justice. This paper therefore argues that such ‘violence of securitization’ – effected by the above dynamics of order and disorder – needs to be further studied if we are to progress towards recognising avenues of access to justice and security.

Insecurity and the Politics of Protection in Post-New Order Indonesia

Kari Telle, Chr. Michelsen Institute (CMI)

An upsurge of non-state security providers and vigilante groups is among the products of Indonesia’s democratization and decentralization reforms since the collapse of Suharto’s authoritarian New Order state (1966- 1998). On the island of Lombok, civilian crime-fighting groups were formed long before reformasi-era politicians began to speak about the importance of creating ‘partnerships’ and ‘trust’ between police and local communities. This paper examines the notions of security and justice informing the activities of two crime-fighting groups in Central Lombok and their ambivalent relationships with the police. Organized in response to growing concerns about theft, these groups strive to alleviate economic insecurity and adopt a pragmatic approach to crime which involves efforts to retrieve stolen cattle and consumer goods from thieves and middle-men. To achieve this it is necessary to possess knowledge of criminal networks and bargaining skills, hence it is not uncommon for repenting ex-thieves to be recruited and to rise to positions of leadership. The paper discusses these practices in light of Sasak ideas of masculinity and thievery, and examines how these practices generate ambiguity as to whether such security groups are predators or protectors. Tracing the historical trajectories of these groups, the paper highlights their shifting roles and the tendency to become involved in extortion and illegal accumulation. These developments, it is argued, are closely connected with reformasi-era political dynamics in which political figures and candidates for public office seek to enlist these groups in their projects, developments that heighten conflicts within as well as between security groups. Disillusionment with political cooptation and corruption has led several crime-fighting groups to foreground religious duties, notably the performance of collective prayers in connection with death. In effect, they aim to provide economic security and posthumous safety through the provision of Islamic merit (pahalla) for the deceased. In coming together to pray for their dead members, these groups generate vital forms of social solidarity and mutual support.

35

Kari Telle is a social anthropologist who works as a Senior Researcher at the Chr. Michelsen Institute (CMI) in Bergen, Norway, where she coordinates the ‘Politics of Faith’ research program. Her work in Indonesia deals with popular religion, ritual, conflict and security politics. She has conducted long-fieldwork among the Sasak and Balinese on Lombok. She is the co-editor, with Bruce Kapferer and Annelin Eriksen, of Contemporary Religiosities: Emergent Socialities and the Post-Nation State (2010). Recent publications include: “Vigilante Citizenship: Sovereign Practices and the Politics of Insult on Lombok,” (in press, 2010); “Dharma Power: Searching for Security in Post- New Order Indonesia,” (2009), “Swearing Innocence: Performing Justice and ‘Reconciliation’ in Post-New Order Lombok” (2009) and “Spirited Places and Ritual Dynamics among Sasak Muslims on Lombok” (2009).

Different non-state actors and their legitimacies in Somalia

Markus Virgil Hoehne, Max Planck Institute for Social Anthropology in Halle/Saale

Somalia has been without effective state institutions since 1991. Moderately effective state-like institutions have been rebuilt in Somaliland and Puntland in northern Somalia. They do not enjoy international recognition and are limited in power and scope. Against this background, alternative forms of authority gained prominence. Throughout Somalia Sharia courts and elders are involved in keeping law and order and settling conflicts. Characteristic for both is their local focus – they act most effectively among their communities based on neighborhood and/or kinship ties. Their legitimacy, however, derives from different sources. Sharia courts implement divine law and demand respect from all Muslims, regardless of ethnic or clan belonging. Traditional authorities/elders are family or clan heads. The norms they follow are ‘man made’ and include verbal agreements, proverbs and other forms of passed on wisdom. Elders and religious scholars in Somalia do not act in a political vacuum. They have to engage with and are influenced by militias, civil society groups and representatives of the existing state-like institutions. This paper is based on secondary sources and on empirical data. It introduces religious and traditional authorities as most relevant non-state actors in Somalia. In a second step it presents a case study of the election of a new traditional authority in a politically contested place in northern Somalia. It shows how religious and political factions compete over securing this important position for themselves. The case study sheds light on the importance (and roles) but also the predicament of non-state actors in contemporary Somalia.

Markus Hoehne ([email protected]) is currently finalizing his PhD on processes of identity and state formation at the Max Planck Institute for Social Anthropology in Halle/Saale, Germany. He has conducted extensive field research in northern Somalia since 2002. He is the author and co-editor of several books, journal articles and book chapters. Most recently he co-edited ‘State borders and borderlands as resources in the Horn of Africa’ (with Dereje Feyissa).

Local Security Assemblages and Everyday Strategies of Conflict Resolution in a Marginalized Mexico City Neighbourhood

Markus-Michael Müller, Freie Universität Berlin

Through the lens of contemporary Mexico City, a paradigmatic urban setting in the Global South where high levels of insecurity, violence and an unrule of law are integral parts of the existing urban order, this paper addresses the question how marginalized urban communities respond to prevailing problems of insecurity. By drawing on the results of empirical fieldwork in Iztapalapa, one of the most marginalized neighbourhoods in Mexico City, marked by serious problems of crime, violence, and inefficient and abusive policing, the paper demonstrates that although a

36 variety of ‘private’ strategies of security provision and conflict resolution ‘beyond the state’ can be identified at the neighbourhood level—strategies which are deeply embedded in local political structures, family ties and informal mechanisms of social control—local residents, notwithstanding extremely negative experiences with the police, do not abandon state institutions as security providers. Rather, they continue to interact with the police by integrating them in ambivalent, ‘formal’ and ‘informal,’ ‘public’ and ‘private,’ ways into their everyday strategies of security provision and conflict resolution. By doing so, local residents become central mediating agents within micro-level security governance arrangements, whose choices and actions are decisive in determining the ‘public’ or ‘private,’ ‘formal’ or ‘informal’ character of local security provision under context-dependent conditions. Against this background, the paper identifies different patterns of security provision and conflict resolution at the neighbourhood level and suggests that in order to conceptualize these practices, research has to move beyond binary analytical frameworks, based on static and mutually exclusive categories (such as public vs. private) and unspecified notions of ‘blurred boundaries’ or ‘hybrid political orders.’ In order to overcome the shortcomings of such approaches, which are unsuitable for grasping the complex, ambivalent and context-dependent dynamics of these everyday security strategies, the paper further elaborates the notion of ‘security assemblage’ in order to conceptualize local security practices from a continuum based perspective, sensitive to the context-dependent configuration and composition of a given assemblage structure and the different logics and strategies that bring together its component parts.

Markus-Michael Müller holds a PhD in Political Science from the Freie Universität Berlin. He has been a research associate at the Research Center (SFB) 700: ‘Governance in Areas of Limited Statehood’ (Freie Universität Berlin) and is currently a postdoctoral researcher at the Centre for Area Studies at the Universität Leipzig, where he is pursuing a research project on state formation and the ‘hybridization’ of the state’s monopoly of violence in Latin America. Recent publications include: ‘Community Policing in Latin America: Lessons from Mexico City,’ European Review of Latin American and Caribbean Studies (88) (2010), 21-37, and ‘The Struggle over Human Rights in Mexico,’ in Klaus Hoffmann-Holland (ed.), Human Rights and Ethics in a Globalized World (Tübingen: Mohr-Siebeck, 43-62, 2009). Contact: [email protected]

Authority, intimacy and policing in Urban Manila

Steffen Jensen, the Rehabilitation Centre for Torture Victims

In this paper, I wish to explore the production of authority by looking at how intimacy and policing intertwine in a poor, urban neighbourhood in Manila. Much academic work on justice in the Philippines, focus on how the Philippines, in contrast to many other countries in the world, has been able to adopt a restorative and community based model of justice. These systems are written into the legal codes, endorsed by the state and its local representatives receive monetary support. The legal framework complements and speaks to a long-standing decentralized politics where policing has always been local matters through the system of Barangays (local government) and Lupons (mediation forums). Furthermore, local communities have a long standing tradition for mistrust in the state where families take the role of the central locus of authority, giving rise to what some scholars refer to as the ideology of familism. Hence, despite state recognition, these justice systems are embedded in local dynamics in intricate and complex ways. Individual families, favoured by the head of local government, are made the agents of the system. Political leaders use the same agents for electoral purposes. The boundaries between the legal and the illegal are therefore negotiated through notions of community obligations. In order to capture these dynamics, I draw theoretically, on Aaron Goodfellow’s notion of ‘compelling intimacy’. Empirically, the paper draws on six months of ethnographic fieldwork, policing reports and quantitative surveys in Bagong Silang, a resettlement area on the margins of Metro Manila.

Steffen Jensen is a senior researcher at the Rehabilitation and Research Center for Torture Victims (RCT) in Copenhagen as well as associated to the Wits Institute for Social and Economic Research (Wiser) in Johannesburg.

37 He has published on issues of violence, gangs, vigilante groups, human rights, urban and rural politics, as well as on the relationship between security and development in rural and urban South Africa. He has published the monograph Gangs, Politics and Dignity in Cape Town along with anthologies on human Rights and state violence and securitization in Southern Africa. Recently he has conducted ethnographic fieldwork in Manila, Philippines, focusing on fraternities, policing and youth.

Marginal secret societies shoring up the State and security in Freetown, Sierra Leone

Nathaniel King, Max Planck Institute for Social Anthropology, Germany and Martin Luther University

There are about ninety-six marginal secret societies in Freetown, Sierra Leone’s capital. They are considered marginal because they abound at the geographical and socio-economic margins of the city, and because, in relation to the older urban secret societies, they are seen as less-powerful. I found out that marginal secret societies memberships were: routes to achieving urban integration in Freetown; ways of building a favourable power relations ratio with the State and, maybe latently, means to exposing the limits of the State and, rather surprising, ways of shoring up the State and its law. On Freetown’s wide socio-economic margins, which these societies occupy, the Law of the small centre, which is the State, does not hold. Vast areas of these margins are effective quasi-statelets. The State, recognising its structured inability in these places, employs the services of marginal secret society members to tackle and prevent crime. In my paper, I will examine: why marginal secret society succeed in ensuring State security; the role Sierra Leone’s peculiar youth concept (King 2007) play in this function; a case of a secret society mechanism tracking down a criminal when the State acknowledged it could not; how these secret societies use their own laws to exclude State from the areas they control. The findings, in sum, show that urban marginality and secret society membership are becoming central in the face of the State having only marginal success in making itself felt in the lives of people in post-war Sierra Leone.

Nathaniel King is a doctoral candidate and member of the research group Integration and Conflict along the Upper Guinea Coast at the Max Planck Institute for Social Anthropology in Halle since 2007. In 2007, he has been guest researcher at the Nordic Africa Institute in Uppsala/Sweden. His research focuses on youth, gender, urban identities and associations as well as popular culture in Sierra Leone and Liberia.

Security Governance in Hout Bay: A study of three local communities' capacity to engage in policing

Øyvind Samnøy Tefre, University of Bergen

The South African state’s lacking capacity to deal with the massive problems of crime has led to an increasing gap in the provision of security. The economically empowered have been able to fill part of this gap by purchasing the services of private security companies, but to the vast majority of South Africans, this is not an option. The focus of this paper is to locate different communities’ ability to generate local capacity to confront this gap in security provision. The paper is based on a comparative study of three communities located in Hout Bay (a Cape Town suburb) and their respective ability to affect policing and security. Each community contains a separate segment of the South African population, and they have very different socioeconomic conditions. A nodal governance approach is employed to map the various actors that actively seek to affect the governance of security, both state and non- state. Networking, identity formation, and the social relations surrounding the various actors are crucial variables in order to explain a group’s ability to form a governing node, which can effectively mobilise technologies and resources to affect the provision of security. The communities’ ability to confront the security deficit varies greatly. The relatively affluent white community called the Valley has gathered around a collective project to reduce property crime through

38 a newly formed Neighbourhood Watch, and network extensively with the police and private security companies to achieve their goals. In contrast, the neighbouring communities have not been successful at developing projects that could enhance their security. The mainly African township Imizamo Yethu is characterised by internal division and conflict that prevents collective action, while the coloured community in Hangberg has sunk into a collective apathy, which makes it very difficult to gather wide support for any initiative. The relationship between the communities is characterised by distrust, and the current development of increasing differences in access to security is likely to increase distrust and tension. The study indicates that unless the people of Hout Bay are able to build common projects that will enhance the provision of security to all communities, they may all stand to lose in the long run.

Øyvind Samnøy Tefre holds a Master’s degree from the Department of Administration and Organization Theory at the University of Bergen, Norway. The Master’s Thesis is titled “Persistent Inequalities in Providing Security for People in South Africa – A comparative study of the capacity of three communities in Hout Bay to influence policing” and forms the basis for the paper to be submitted for this conference.

Closure of Bars, Cantinas and Brothels. Civil security, Citizenship and State in El Alto, Bolivia

Helene Risør, PhD Candidate, University of Copenhagen

The paper discusses how vernacular understandings of citizenship and state unfold in relation to people’s experiences of civil insecurity and attempts of generating security in urban Bolivia. The empirical focus is on the so- called ‘Closure of bars, cantinas and brothels’ in October 2007 in the city of El Alto. On this occasion students organized in the Federación de Estudiantes Secondarios (FES) sat several bars on fire. Associating the bars with crime they demanded increased control as well as a law-decree that prohibited bars to function in the vicinity of the schools. After the ‘closure’ the FES has become a de facto political actor, and they partake control of bars and brothels. ‘The closure’ is illustrative for an understanding of state-citizen relations in Bolivia. On the one hand it indicates people’s frustration with crime as well as a tendency to collectively engage in extra-legal acts of security. The popular support to the students also shows that these actions are considered necessary as a response to police corruption and state failure to ensure safety for the poor. On the other hand, a detailed analysis of the events equally indicates that acts of the kind do not stand in an antagonist relationship with state and state authorities. Rather, state authorities depend upon the citizens’ (illegal) order ensuring activities, and from the perspective of citizens the ‘closure’ is a way of engaging with the state from the margins. I argue that protests such as the clausura are inasmuch state enhancing, as they are a defiance of state sovereignty and that local order ensuring practices simultaneously brings the state forth and radically transforms it. I conclude by relating to the broader political transformations in Bolivia and the tendency that sovereignty is enacted by means of collective citizenship rather than by the state.

The District Council Chairman and His Task/Tax force: the politics of remobilised combatants in post-war Sierra Leone

Maya Mynster Christensen, Department of Anthropology, University of Copenhagen

This paper addresses the dynamics of governance and of militarized politics in the rural borderland of Sierra Leone. With point of departure in long-term ethnographic fieldwork conducted amongst ex-soldiers and ex-combatants, the paper unravels the role so called ‘ex-servicemen’ have come to play in performing statehood practices in a context of absent centralised state power. Focusing on the re-mobilization of ex-soldiers and ex-combatants into official and less official politico-economic domains, it is illuminated how sovereignties are contested, negotiated and blurred by a multitude of actors with competing claims to authority. The blurring of sovereignties is demonstrated through a case

39 study of young ex-combatants who recently became employed as revenue collectors on strategic border crossing points. Rewarded for their loyalty to a former warlord and coup maker who now serves as the District Council Chairman, the young ex-combatants have come to occupy powerful positions in the borderland; positions that are constantly challenged by local authorities who equally claim the power to exercise control over the circulation of goods and bodies, and the right to regulate economic relations. By illuminating how the young ex-combatants tactically navigate in a field of competing actors, sometimes positioning themselves as official tax collectors and other times as unofficial in/security guards, the paper finally sheds light on the blurring of shadow networks and official political networks, and analyses the interdependent relationship between non-state regulators and the constitution of state power.

Maya Mynster Christensen is a Ph.D. Fellow at the Department of Anthropology, University of Copenhagen. The research on cyclic de- and re-mobilisation of ex-combatants and ex-soldiers in the Mano River Region of West Africa. In 2007-2008 she was consultant for the World Bank in Sierra Leone, concerning a project on local level governance and justice administration amongst marginalised groups in post-conflict societies. Research was done on community-level accountability in the mining sector in Sierra Leone. She has also worked as research assistant at the Nordic Africa Institute and at the Rehabilitation Centre for Torture Victims.

Decentralised power, traditional authorities and who gets access to justice (and who doesn’t) in West Africa

Professor Paul Jackson, University of Birmingham

This paper will examine the idea of using traditional authorities as a means to expand access to justice and security to those elements of the population that are isolated from formal justice systems. It has become something of a truism to say that the majority of the West African population only accesses justice through the chiefdom system and through non-state providers. However, there is a need to consolidate this research and to put forward a clear argument about who benefits and who does not from these systems. In traditional systems traditionally many groups have missed out on access to justice and security and there is a fundamental question of whether this is ‘good enough government’ or if there are ways in which justice and security provision can be improved. Decentralisation may be one way whereby access to justice and security may be expended to these hitherto excluded groups, but historically decentralisation has been neglected in the literature, particularly in post-conflict or fragile state approaches to state building. This paper will look at West Africa, concentrating particularly on Sierra Leone where there has been a historically strong chiefdom system but also a decentralisation programme. It will argue that whilst there are possible gains from such a decentralisation process, the micro-processes of non-state actors have a tendency to capture elements of the state that directly affect them. The experience of decentralisation in Sierra Leone shows clearly that not only has the power of the chiefs continued at local level but that several aspects of the local state, e.g. tax collecting, have been captured by local elites to the detriment of those who have traditionally been excluded from security and justice.

Professor Paul Jackson is currently Head of the School of Government and Society at the University of Birmingham in the UK. He has expertise in post-conflict reconstruction, state building, governance, decentralisation and security governance. He has a body of research, policy work and training on the relationships between state and non-state actors, decentralisation, institutional development and governance, particularly in situations where the state has collapsed or is fragile. Recent experience includes Nepal, Northern Uganda, Sierra Leone, Rwanda, and the Caucasus. As Director of the Global Facilitation Network for Security Sector Reform, Paul Jackson has been involved in providing research support and training to FCO, MOD and DFID officials. He sits on the Geneva DCAF Advisory Board, is a member of the Folke Bernadotte Institute working group on Security Sector Reform

40 and directs the International Development Department’s postgraduate programme in Conflict, Security and Development. His evaluation, with Peter Albrecht, of the UK Government’s involvement in post-conflict Sierra Leone, Rebuilding Sierra Leone: Security Sector Reform and the rebuilding of a country, was recently launched in Whitehall and a fuller version of this work will be published by Palgrave Macmillan at the end of 2010.

Modern Chiefs. Tradition, development and return among traditional authorities in Ghana

Nauja Kleist, Danish Institute for International Studies

This paper examines traditional authorities with an international migrant background and their engagement in development, focusing on Ghana. It specifically analyzes the positions and dilemmas of such return chiefs, their transnational resource mobilization strategies, and the registers of legitimacy they draw upon, analyzing the underpinning social and symbolic relations that make chiefs’ positions and mobilization efforts possible and successful. The paper argues that return chiefs are positioned in a tension between the domains of tradition and being modern, two simultaneous but potentially contrasting registers of legitimacy. On the one hand, chiefs emphasize their foundation in tradition, performing chieftaincy through their statutory activities, dress and conduct as well as articulating their position in terms of sacrifice and moral obligation. On the other, they describe themselves as development actors, accentuating their professional leadership, touring European and North American countries, collaborating with international development agencies, NGOs and migrants, and incorporating migrants and other donors into their development efforts through collaboration and public recognition. The paper thereby contributes to the growing literature on the transformation of chieftaincy and traditional authorities as development actors. It is based on interviews with ten return chiefs as well as observations, carried out during six months of fieldwork in Ghana in 2008 and one month in 2010.

Nauja Kleist holds a PhD in sociology from University of Copenhagen (2007) and works as a project senior researcher in the Migration Unit at the Danish Institute for International Studies (DIIS). She is an expert in migration, transnationalism, and gender studies and has published extensively on these issues. Her current research focuses on Ghanaian transnational migration, based on fieldwork in Ghana and Copenhagen (2007-2010) among policy makers, traditional authorities, civil society organization and hometown association executives, and return migrants. She has previously (1999-2006) done research on Somali refugees in Copenhagen, London and Somaliland in relation to mobility, gender relations, diasporic mobilization, and integration.

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