A Sub-National Case Study of Liberal Peacebuilding in Sierra Leone and Liberia

Department of Political Science McGill University

Harmonizing Customary Justice with the Rule of Law? A Sub-national Case Study of Liberal Peacebuilding in Sierra Leone and Liberia

Mohamed Sesay

A thesis submitted to McGill University in partial fulfilment of requirements for the degree of Doctor of Philosophy (Ph.D.)

Mohamed Sesay, 2016

ABSTRACT One of the greatest conundrums facing postwar reconstruction in non-Western countries is the resilience of customary justice systems whose procedural and substantive norms are often inconsistent with international standards. Also, there are concerns that subjecting customary systems to formal regulation may undermine vital conflict resolution mechanisms in these war-torn societies.

However, this case study of peacebuilding in Sierra Leone and Liberia finds that primary justice systems interact in complex ways that are both mutually reinforcing and undermining, depending on the particular configuration of institutions, norms, and power in the local sub-national context. In any scenario of formal and informal justice interaction (be it conflictual or cooperative), it matters whether the state justice system is able to deliver accessible, affordable, and credible justice to local populations and whether justice norms are in line with people’s conflict resolution needs, priorities, and expectations. Yet, such interaction between justice institutions and norms is mediated by underlying power dynamics relating to local political authority and access to local resources.

These findings were drawn from a six-month fieldwork that included collection of documentary evidence, observation of customary courts, and in-depth interviews with a wide range of stakeholders such as judicial officials, paralegals, traditional authorities, as well as local residents who seek justice in multiple forums. Comparative analysis was largely sub-national in order to capture multiple layers of complexity in the traditional authority structure as well as important regional variation in Sierra Leone and Liberia.

RÉSUMÉ Une des plus grandes énigmes liées aux travaux de reconstruction à la suite d’hostilités dans les pays non occidentaux est la résilience des systèmes de droit coutumier dont les normes procédurales et substantives sont souvent incompatibles avec les normes internationales. Il y a également des préoccupations selon lesquelles la soumission des systèmes coutumiers aux règlements formels puisse miner les mécanismes vitaux de résolution des conflits dans ces sociétés ravagées par la guerre.

Cependant, cette étude de cas de consolidation de la paix en Sierra Leone et au Libéria montre que des systèmes de justice traditionnels interagissent de façons complexes : ils soutiennent le processus d'une part et l'affaiblissent également, selon la configuration particulière des institutions, des normes, et des pouvoirs propres au contexte infranational local. Dans toute situation d'interaction entre la justice formelle et informelle (qu'il y ait conflit ou coopération), il importe que le système juridique d'État puisse offrir aux populations locales, des services juridiques accessibles, abordables et crédibles et que les normes de justice soient conformes à leurs besoins, à leurs priorités et à leurs attentes, en matière de résolution de conflits. Et pourtant, de telles interactions entre les institutions de justice et les normes sont soumises à la médiation par des dynamiques de pouvoir sous-jacentes, relatives aux autorités des politiques locales et à l'accès aux ressources locales.

Les conclusions de cette étude ont été tirées d'un travail de recherche sur le terrain de six mois qui comprenait : la collecte d'éléments de preuve, l'observation des tribunaux coutumiers, des interviews en profondeurs avec un large éventail de parties intéressées, telles que des fonctionnaires judiciaires, des parajuristes, des autorités traditionnelles, ainsi que des résidents locaux qui cherchent à obtenir justice dans de nombreux forums. L'analyse comparative était en grande partie infranational, afin d'obtenir de multiples niveaux de complexité dans la structure du pouvoir traditionnelle, ainsi que les variations régionales importantes en Sierra Leone et au Libéria.

CONTENTS

Acknowledgments...... v List of Figures ...... vii

CHAPTER ONE Introduction and Study Design

Problem Statement and Research Questions ...... 8 Defining Customary Justice Systems ...... 11 Rule of Law Engagement with Customary Justice ...... 16 Study Context: West African Manor River Basin ...... 23 Subnational Comparative Method ...... 27 Case Selection...... 33 Data Sources ...... 39 Ethical Considerations ...... 44 Data Analysis ...... 46 Structure of the Dissertation ...... 48

CHAPTER TWO Literature Review and Conceptual Framework

Introduction ...... 55 Statebuilding as Peacebuilding model...... 56 Legal-rationalism as Modernization Redux ...... 62 What is the Rule of Law? ...... 64 (Re-) building the Rule of Law in War-torn Societies ...... 70 Legal Reform ...... 72 Justice Sector Reform ...... 74 Transitional Justice ...... 81 Peacebuilding and Rule of Law in Africa ...... 85 State Failure or Collapse...... 85 History of Legal Pluralism in Africa ...... 91 Political Economy of Colonial Customary Law ...... 97 Chieftaincy and Traditional Authority ...... 102

Politics of Informalization ...... 105 Conceptual Framework ...... 108

CHAPTER THREE The Political History of Sierra Leone and Liberia

Introduction ...... 112 Declaring a British Protectorate over the Hinterland of Sierra Leone ...... 113 Settler-indigenous Relations in Liberia (1885-1944) ...... 119 Independence: Sons and Nominees of Paramount Chiefs in Power ...... 126 One-party Rule: Consolidation of Coercive Patronage Politics ...... 130 The Tubman Era (1944-1971) ...... 133 De-Tubmanizing while Repression Continues (1971-1989) ...... 137 The Liberian Civil War (1989-2005) ...... 142 Sierra Leone: Another Manor River Insurgency (1991-2002) ...... 146 Conclusion ...... 151

CHAPTER FOUR Post-war Reconstruction and Justice Sector Reform in the Manor River Basin

Introduction ...... 154 Kabbah’s Administration: Dual Commitment to Formal and Traditional Authority...... 156 Koroma’s Natural Resource Boom: Running the Country Like a Private Business ...... 162 Johnson-Sirleaf Administration: Another International Favourite in Power ...... 166 Sierra Leone Justice Sector Reform Program ...... 176 Made in America: Liberia’s Postwar Rule of Law Reform ...... 180 Rebuilding Formal Justice: Availability, Effectiveness, and Accessibility ...... 182 Capacity Deficit ...... 185 Legal Representation and Litigation ...... 188 Orthodox Legal Profession ...... 191 Local Ownership...... 195 Conclusion ...... 198

CHAPTER FIVE Engagement with Customary Justice Systems in Post-conflict Sierra Leone

Introduction ...... 203 State-supported Primary Justice System ...... 205 The Local Court Act and Traditional Authorities ...... 210 Interaction between Official and Unofficial Customary Justice ...... 224 Kassi: Local Criminal Justice ...... 228 Civil Dispute Resolution ...... 238 Adjudication without Authority: Kangaroo Court...... 242 Conclusion ...... 254

CHAPTER SIX Primary Justice Interaction Continues: Beyond Provincial Sierra Leone

Introduction ...... 256 Illegal Justice: Application of Customary Law in Freetown ...... 258 Accessible Justice in Freetown ...... 261 Legitimacy of Tribal Headmen Courts ...... 269 The Politics of Tribal Authority ...... 274 Dual Justice System in Post-conflict Liberia ...... 280 Accessing Justice in Hard-to-reach Areas: Grand Gedeh County ...... 282 Resolving Dispute without Enmity...... 288 Multiple Centers of Judicial Power ...... 293 Conclusion ...... 300

CHAPTER SEVEN Summary, Conclusions, and Recommendations ...... 303

Major Findings about Justice Sector Reform ...... 305 Politics of Justice Reform ...... 305 Institutional Effectiveness ...... 310 Social Relevance ...... 315 Conclusions about Formal and Informal Justice Interaction ...... 318 Wider Implications and Recommendations of this Study ...... 326 Conceptual Development ...... 327

iii

Policy Improvement ...... 329 Rule of Law Programming ...... 332 Future Research ...... 335 Appendix 1: Consent Form ...... 340 Appendix 2: Recruitment Letter ...... 343 Appendix 3: Interview protocol ...... 344 Bibliography ...... 345

ACKNOWLEDGEMENTS This study would not have been accomplished without the steadfast support and assistance of many people, to whom I owe a deep sense of gratitude. First, I would like to express sincere thanks to Dr. Rex Brynen, my program supervisor. I can hardly find the right words to describe the extent to which you have motivated and guided me as a young scholar since the beginning of my PhD studies to the completion of my dissertation. In addition to intellectual guidance, I have been blessed to be supervised by a professor whose true passion is to ensure that his students realise their God-given potential to succeed. Thanks so much for having an unwavering confidence in me, reflected in your insightful comments on my work as well as inspiring thoughts during our meetings. You are simply the best and I would remain forever grateful. Similarly, I extend profound gratitude to my proposal and dissertation committee members including Dr. Khalid Medani, Dr. Maria Popova, and Dr. John Galati who provided very helpful feedback on this project.

Other professors have been very supportive to me in many ways during this academic journey. In particular, I am indebted to Dr. Catherine Lu whom I always turned to for academic and moral support. You have been always willing to assist me formulate my own ideas including being my internal examiner, but it is your kindness during such support that greatly impacted my time at McGill. I am equally grateful to Dr. T.V. Paul, Dr. Filippo Sabetti, Dr. Myriam Denov, Dr. Hudson Meadwell, Dr. Elisabeth L. Gidengil, Dr. Dietlind Stolle, Dr. Juliet Johnson, and Dr. Yves Winter for their willingness to support me at any time I asked for help. Earlier, I was inspired by Dr. Andy Knight as my supervisor for a six-month Commonwealth exchange and Master’s programs at the University of Alberta. At the University of Sierra Leone, I am thankful for the guidance of political science lecturers including Dr. Osman Gbla, Miss Lena Thompson, Mr. Alimamy Pallo Bangura and Dr. Joseph Lansana Kormoh of the History Department.

A special word of appreciation to Dr. Paula Brook, my closest mentor and guardian. For more than 10 years now, you have demonstrated an unflinching support to my graduate studies at the University of Sierra Leone, University of Alberta, and McGill University. You have been there for me every step of the way, reading every paper I have written and published, guiding every aspect of my dissertation project, and building my expertise to become a scholar. You shared with me the joy of every accomplishment as well as sadness of every disappointment, through which you always reminded me of the important milestones I have achieved. Beyond mentorship, your generosity and care made me feel at home while studying abroad. You are a special blessing not only to me but to my entire family and we would like to express our deepest gratitude. God will richly reward you for being part of our family.

I would also like to acknowledge senior colleagues and peers who have motivated me to pursue doctorate studies. Among them is Dr. Megan H. MacKenzie who has inspired me through feedback on my papers, joint publications, and collaborative research projects. Other friends who

encouraged me at the University of Alberta include Dr. Christopher Dyck, Dr. John Fofanah, Dr. Sullay Kanu, Dr. Jospeh Nungu, and Dr. Edward Akuffo. At McGill, I have been fortunate to interact with a cohort of supportive colleagues, namely Dr. Jonathan Waind, Dr. Merouan Mekouar, Jonathan Montepetit, Patrick Brobbery, Alice Chesse, Lou Pingeot, Zhen Han, Hiba Zerrougui, Jacob Rabas, Virginie Lasnier, Rekha Chakravarthi, Narcedalia Lozano, Randy Pinsky, Sherif Fuoad, Peggy Katende, and Kelsey Brady who kindly translated this thesis abstract into French. Thanks so much for your collegiality and friendship. Much needed personal assistance in Edmonton also came from close friends such as Renny Khan and Agatha Lebbie. In Montreal, I cherish the goodwill of the Lymon family, Alusine Bah, and Onward Gospel Church.

Generous funding for this research was offered through the Social Science and Humanities Research Council’s Vanier Canada Graduate Scholarship, McGill’s Graduate Student Travel Award, and the Department of Political Science. I am deeply thankful for these grants because they enabled me to concentrate on my studies, undertake a six-month fieldwork in Sierra Leone and Liberia, and to devote sufficient time in thesis writing. Such funding support has also been crucial in early attempts to publish the findings of this research including presentations at the 2015 International Studies Association’s conference in New Orleans and a chapter in Evaluating Transitional Justice (2015). McGill’s Interuniversity Consortium for Arab and Middle East Studies (ICAMES) kindly provided me with office facilities needed for my coursework and research. Also, I would like to note the tremendous assistance from McGill Political Science Department’s staff, especially Andrew Stotem, Tara Alward, Pina Giobbi, and Mari Ikeda.

During my fieldwork, I benefited immensely from the gracious support of a host of institutions and individuals. In Sierra Leone, I am particularly obliged to Mr. Simeon Koroma, Director of Timap for Justice which is a leading paralegal service provider in the country. Thanks for your insightful guidance into my fieldwork, for granting me access to an office space in Makeni Town, as well as allowing me to interact with your paralegals through interviews and informal conversations in many forums. I extend gratitude to Mr. Abu Brima of the Network Movement for Justice and Development for allowing his organization to host me in a similar way in Koidu Town. For leaders of Partners in Conflict Transformation (PICOT), I treasure the enlightened contributions of Paul Koroma, Maxwell Kemokia, and Ibrahim Sesay. Apart from sharing their personal experiences with me, building relationship with these leaders enabled me to participate in three important dialogue conferences organized for paramount chiefs and other traditional authorities in Sierra Leone. I am also highly appreciative of the hospitality of paramount chiefs whose chiefdoms I visited, James Sawo-Koroma of Freetown, and Major Saa Emmerson Lamina of Koidu. In Liberia, the research assistance of Sarah Sumo is greatly appreciated.

Finally, the ultimate source of emotional strength for this study comes from my loving family in Freetown. My father did not live long to see me earn even my first degree but his deepest desire to educate his children remains with me to date. To my mom, thank you so much for the countless sacrifices and silent prayers for me. It gives me greatest joy to make you proud through this accomplishment. To Alpha, Isatu, and my other siblings, your moral encouragement have been invaluable throughout this journey. Lastly, I am deeply indebted to my dearest Juliet, for your love, prayers, commitment, and long patience with me while studying abroad.

LIST OF FIGURES

Figure 1.1: Map of Study Sites…………………………………………………………………..36 Figure 1.2: Local Authority Structure……………………………………………………………40 Figure 2.1: Formal and Informal Justice Interaction Model……………………………………110 Figure 5.1: Customary Justice Systems before 2011…………………………………………...225 Figure 5.2: Customary Justice Systems after 2011……………………………………………..225 Figure 5.3: Elders Cross-examining Disputants in a Court Barray…………………………….244 Figure 6.1: Tribal Court Summons Notice……………………………………………………..275

vii

CHAPTER ONE Introduction and study design

Problem Statement and Research Questions

Peacebuilding in the post-Cold War era has become closely linked to statebuilding, with a premium being placed on developing the institutional capacity of a state to effectively and legitimately carry out its core functions.1 This renewed emphasis on statebuilding is generally attributed to the post-Washington Consensus on states’ role in development, growing attention to human security, and a post-9/11 concern about weak states becoming safe haven for global terrorism and other transnational organized crimes.2 But, while statebuilding has historically been an endogenous political process of negotiating state-society relations, current external interventions in war-torn societies focus almost exclusively on a technical process of strengthening governmental institutions as if formal capacity development was the remedy of deeper legitimacy issues confronting those societies. In terms of justice sector reform, institution building has proceeded mainly as a technocratic exercise geared toward restoring and extending the state’s legal authority to deliver justice in accordance with international principles.3

Consequently, externally-driven rule of law programming has had profound impact on the ways non-state justice systems—particularly those related to customary institutions—are perceived

1 According to the OECD, statebuilding must be a central objective of international assistance because “states are fragile when they lack political will or capacity to provide basic functions such as safeguarding the security and human rights of their populations” (Principle 3, OECD DAC’s Ten Principles for Good International Engagement in Fragile States and Situations, 2007). Although peacebuilding and statebuilding are often viewed as coterminous, it is important to note that the two terms are not conceptually synonymous. Paris and Sisk (2009) consider statebuilding as a sub-component of peacebuilding that calls for greater attention to strengthening governmental institutions. 2 This is an important policy shift as earlier development strategies tended to minimize the role of the state in favor of civil society (Organization for Economic Cooperation and Development (OECD), 2009). 3 See UN Department for Peacekeeping Operations, United Nations Peacekeeping Operations: Principles and Guidelines, (UN Secretariat, 2008).

and engaged in post-conflict peacebuilding. Initially, customary justice mechanisms have been viewed as highly problematic, discounted for being irredeemably primitive, inherently patriarchal, and condoning discriminatory practices that deny vulnerable groups equal access to justice. Accepting customary practices is seen as a risky proposition that undermines the very essence of expanding post-conflict state authority and reinforces those structural grievances which culminated into war in the first place. Instead, rule of law programmers anticipate that customary dispute resolution would become redundant as soon as the post-conflict state gets

(re)consolidated to guarantee legal recourse and take over its normal regulatory functions.4

Where a formal rule proscribing the judicial role of customary justice systems is absent, top- down regulatory measures are aimed at restricting the jurisdiction of such institutions and making their procedural and substantive norms consistent with international liberal standards.5

Formal regulation usually involves codification of customary laws, standardization of the procedures through which those laws are applied, and concentration of adjudicative power into a state-constituted justice system. These modernization processes have been widely adopted with little attention to how local judicial authority relates to the institution of chieftaincy as well as the adverse effect of formalization on the social relevance of key conflict resolution mechanisms.

However, Logan (2010) contends that “traditional authorities have successfully reasserted themselves under the auspices of political liberalization, democratization, and decentralization frequently succeeding in carving out new political spaces for themselves” (1). A recent study

4 The British DFID’s guidance document on dealing with non-state justice and security (NSJS) systems notes that: “poor people’s preference for using NSJS systems may reflect the weaknesses of the formal justice system, and does not necessarily indicate satisfaction with the NSJS systems themselves” (2004, 3). 5 For instance, Kofi Annan calls for due regard to indigenous and informal traditions for administering justice but insists that they operate in conformity with international standards (UN Security Council, 2004). This position re- echoes the principles guiding engagement with non-state justice systems by major international agencies including the UNDP, DFID, USAID, and the OECD.

notes that “customary systems are the primary—if not the sole—means of dispute resolution for

80 to 90 percent of the population” in war-torn countries (Isser et al. 2011, 325). Although most of these traditional mechanisms lack official status, they continue as the forum of choice for the majority population while formal justice systems remain the least accessible and legitimate of state institutions (Harper 2011; Isser et al. 2011). Another UN-funded research on informal justice systems in 12 Developing Countries concludes that these systems now constitute a key part of communities’ experience of justice and the rule of law, accounting for over 80 percent of dispute resolution in some countries (UNDP et al. 2012; Wojkowska 2006). One striking finding in these studies is that customary justice institutions have remained resilient and indispensable in war-torn societies despite the enormous resources being devoted to (re)building the rule of law in line with the liberal peacebuilding agenda (Marshall 2014). Even in countries where the causes of civil war have been linked to grievances against traditional authorities, justice reform seems to have little impact on the popular legitimacy of customary conflict resolution.

Yet to date, the link between traditional authority structures, customary justice, and the local political-economy of war-torn societies remains poorly understood and under-theorised. Drawing from a case study of post-conflict peacebuilding in Sierra Leone and Liberia, my research examines how the interplay between official and unofficial primary justice systems shapes, and is being shaped by, underlying configuration of norms, institutions, and power at the local level.

I adopt a subnational comparative method to understand how the administration of justice in postwar settings is influenced by local power dynamics to produce varying forms of strategic interactions among parallel justice systems. I argue that any attempt to restructure customary justice systems will potentially alter local power relations within subnational regional settings, thereby inducing various incentives for traditional authorities to either cooperate with or resist

formal regulation. Although bringing customary mechanisms into conformity with international standards may appear a technical institutional exercise, such moves may become active sites of political contestation over the control of regulatory authority in which local power relations are recast (Lund 2006). Thus, beyond issues relating to incompatibility of justice norms and weak state capacity, a crucial variable mediating traditional authorities’ response to rule of law reforms is the extent to which such institutional restructuring affects their position in the local authority structure.

Defining Customary Justice Systems

As noted in the beginning of this chapter, the definition of traditional or customary justice systems is often fraught with inconsistencies and pejorative connotations which my dissertation seeks to avoid. For instance, the word “tradition” is frequently defined to connote static archaic norms, particular to a certain locale. Often the term is used to imply value-laden assessments that relegate systems with such a description as inferior or of a lower esteem. This condescending portrayal usually comes with the built-in assumption that customary justice systems are irredeemably discriminatory or oppressive to vulnerable groups such as women, strangers, and minorities. Also, it is common scholarship to homogenise traditional justice institutions as a monolithic category and then subsume them under a broader label of informal or non-state justice systems. Although these terms are sometimes used interchangeably, there are still some crucial conceptual clarifications to be made in order to enhance their analytical utility in any form of social inquiry. An important point of departure is to note that Helmke and Levitsky

(2006) define informal institutions as “socially shared rules, usually unwritten, created, communicated, and enforced outside officially sanctioned channels” (5).

In this dissertation, “tradition” is theorized not as “inert internalized normative structures,” but rather as a “dynamic locally adaptive process” (Alie 2008, 133). Against this backdrop, traditional justice systems are construed as “non-state justice mechanisms which have existed, although not without change, since precolonial times and generally found in rural areas” (Penal

Reform International (PRI) 2001, 8). Moreover, I make a crucial distinction between official and unofficial customary justice systems (see Figures 5.1 and 5.2 in chapter 5). Official customary justice systems, known elsewhere as “traditional-style courts” (PRI 2001), are state-constituted local tribunals which may either be administered by a Ministry of Internal Affairs or form part of the formal hierarchy of courts. Stylized traditional courts are a modern creation introduced by colonial indirect rule in an effort to coopt traditional institutions into formal administration and control of peripheral territories (Mamdani 1996). Conversely, unofficial traditional justice institutions lie outside the state system in the sense that no official linkages exist between them and the state—their exercise of judicial authority is often considered illegal according to formal state law. While the state-sponsored customary mechanism is regulated by codified rules found in colonial ordinances or post-colonial legislations, its unofficial counterpart applies what has been referred to as “living customary law” (Weilenmann 2011). Anthropologist Obarrio’s (2011) portrayal of this distinction between parallel systems of regulation is apt: codified customary law created statutory customary courts but did not eliminate pre-colonial forms of justice. Instead, these unofficial mechanisms have remained “a parallel and resilient space of relatively autonomous local authority, functioning beyond direct state control” (28).

Making this distinction is pertinent particularly when conducting research in countries which have experienced colonial indirect rule, a typical example being former British colonies in sub-

Saharan Africa. Owing in part to its own tradition of “customary” Common Law, British colonial administration accommodated African customary law by codifying those customs deemed consistent with Western values of equity, natural justice, and good conscience (Ibhawoh 2009;

Obarrio 2011). According to Governor Lord Lugard of Nigeria, “the best way forward for British administration was by recognizing officially and using the existing indigenous systems of rule and law, through the so-called native authorities” (quoted in Allott 1984, 58). This indirect rule not only created a dualism between Anglo-Saxons and African customary laws (the main focus of legal pluralism) but also between officially-recognized and unofficial customary justice systems. It is also unlike Francophone colonies (or those of other continental European powers) that were governed through a policy of assimilation using general civil laws of Napoleonic roots.

Founded in the Roman tradition of using law for expanding and administering the empire

(Joireman 2001), “local governance through assimilation explains the imperviousness of legal systems in former French colonies to customary forms of justice” in contrast to indirect rule

(Obarrio 2011, 30). But ironically, it must be noted that common law rules that were transferred to British colonies were eventually codified into ordinances which formed the basis of modern state law in the post-colonial era.

Another way I distinguish official and unofficial customary justice systems is by the dispute resolution procedures that they adopt. Generally speaking, the unofficial traditional mechanisms rely on social pressure to secure attendance, participation, and compliance (Abel 1982). Social pressure on disputants to settle and abide by their agreement comes mainly from community members, informal trust networks, power of persuasion, and threat of supernatural sanctions

(Alie 2008). The procedures are relatively informal, flexible, and participatory, with disputants

and their supporters playing a central role in the decision-making process. In contrast, procedures in the official state-constituted system are more formalized and decisions “are backed up by the coercive power of the state” (PRI 2001: 20). In terms of methods, the unofficial system is a blend of conflict resolution (e.g., negotiation, mediation, arbitration) and adjudicative processes, depending on the nature of the dispute and relationship between disputants (Bennett 2012).

Unlike conflict resolution processes in which outcomes have to be a compromise acceptable by both parties to be binding, compliance with adjudicative decisions is based on the judicial authority of a third party as well as threat of sanctions (Felstiner 1974; Momoh 2004). Unofficial adjudication often “follows well-structured procedures based on the interpretation of customary law jurisprudence” but active community participation in the proceedings produces “a friendly and relaxed atmosphere” (Momoh 2004: 163). It must be noted that the clash between official and unofficial justice systems revolves essentially around the question of which system has the authority to adjudicate. Bennett (2012) notes that “by arrogating to itself the sole power to use force, the state also assumes power to compel those under its jurisdiction to submit to its judicial process and to inflict punishment” (30).

What this distinction makes clear is that not all customary justice systems are informal or non- state. It is possible that traditional authorities may develop informal linkages with the state system to enforce compliance. However, to the extent that reliance on the coercive apparatus of the state means decisions no longer depend on social mechanisms and sanctions, the fundamental nature of the traditional system changes. “When coercion is used to ensure attendance and compliance, the non-technical and highly participatory nature of informal hearings, which is crucial to mediated settlement, becomes a serious impediment to justice under the involuntary

process” (PRI 2001, 72). That the state-sponsored system can now rely on formal coercion to enforce decision means it is obliged to conform to requirements of due process which in turn undermines informal and flexible procedure. As Penal Reform International (2001) warns, by incorporating traditional justice methods into the formal system voluntary participation is compromised, and as procedural requirements become more important to improve justice, flexibility of customary practices is by necessity lost. Apart from centralizing the provision of primary justice, formalization of customary justice systems may also erode informal trust networks which often serve as the cornerstone of these institutions (PRI 2001).

This distinction also elucidates the connection between forms of dispute processing and the power of social control. The literature on traditional justice systems tend to blur the lines between conflict resolution and adjudicative processes, assuming that customary justice systems are generally based on the logic of reconciliation, consensus-building, and compromise.

Adjudication is a social control mechanism backed by threat of sanctions to ensure compliance and whoever wields this authority exercises regulative power over people and resources.

Felstiner (1974) underscores the power of adjudication this way: “the effect of losing a dispute is to be told that what you considered normatively appropriate behavior is characterised as anti- social and what you considered your property or your prerogative will now become your enemy’s” (71). This explains why state regulation of customary justice systems is about limiting their judicial authority and why at the same time local leaders consider the erosion of such authority as a threat to traditional institutions such as chieftaincy. As the state attempts to monopolize the local regulative power exercised by primary justice systems, parallel extrajudicial structures have emerged in subnational arenas to adjudicate without legal authority.

Finally, it is important to underscore that while traditional justice and conflict resolution are separate, they overlap in some important respects. Traditional justice, as discussed, involves the application of customary law to seek legal redress whereas conflict resolution invokes non- judicial tools (negotiation, mediation, compromise) to resolve disputes and address minor crimes

(Momoh 2004). However, traditional authorities often merge their conflict resolution and judicial roles. This overlap between judicial and political functions resembles precolonial governance systems in which traditional authorities often switched from dispensing justice to finding compromise solutions (Bamfo 2000; Trotha 1996), but has been reinforced by colonial indirect rule. Colonial officers were required to dispense administrative justice and chiefs were equally allowed to set up courts to adjudicate disputes between “natives” who remained subjects of customary law during colonial rule (Alie 2008). In the immediate post-colonial era, the Ministry of Internal Affairs became an embodiment of such fusion of power as this ministry supervised the administration of customary justice in many post-colonial countries (PRI 2001).

Rule of Law Engagement with Customary Justice

Rule of law reform in war-torn societies is now being broadened to engage customary justice systems that have proved resilient and indispensable to delivery of justice outside the formal state system (Kotter et al. 2015).6 But despite this recognition of the contribution of customary institutions, such engagement manifests the same biases associated with mainstream rule of law assistance (see chapter 2). In other words, customary justice is recognized only when it operates in accordance with international rule of law and human rights standards (UN General Assembly,

6 The UN estimates that in many countries around 80% of cases are resolved through informal justice mechanisms including traditional, indigenous, customary, or non-state systems (UN Rule of Law website, accessed 11 January 2015).

2012). For instance, while the UN now realises that informal justice systems are popular among majority populations in the developing world, pressure is being exacted on member states to ensure that these systems adhere to international procedural and substantive justice norms

(UNDP et al. 2012). In terms of procedure, their adjudication methods must be consistent with due process and objective rules that ensure certainty, accountability, and equality.

Normatively, informal mechanisms must respect “substantive rules that define the rights of vulnerable groups as opposed to stipulating the rules by which those rights and duties are established” (Kerrigan 2012, 11). To this end, the UN Human Rights Commission (UNHRC) requires all states to ensure that traditional, religious, or cultural attitudes are not used to justify violation of women’s rights to equality before the law and equal enjoyment of all covenant rights such as those enshrined in the CEDAW.7 Emphasising these human rights safeguards is based on sometimes well-founded concerns that customary mechanisms in war-torn societies may have been coerced by powerful local elites, involved inhumane treatments of offenders, and are ill- equipped to handle criminal cases and inter-communal disputes, and generally discriminatory towards women and youth (Richards 1996; Kerrigan 2012, Pulver 2011; Wojkowska 2006).

At the same time, an emerging critical rule of law argument has drawn attention to persistent technocratic, normative, and state-centric predilections in current customary justice reform interventions (Harper 2011; Isser et al. 2011; Kotter et al. 2015). This scholarship draws attention to the dangers of engaging customary justice systems in the same technical, legal, and apolitical fashion as their formal state counterpart. From an institutional perspective, the focus

7 CEDAW is the 1979 Convention on the Elimination of All Forms of Discrimination against Women. It is an apt example of the substantive human rights concerns customary justice systems are now expected to address.

has been on state failure and the potential of a justice vacuum where regulation of customary systems is unaccompanied by the necessary state capacity to deliver satisfactory justice.8 The main thrust of the state-failure argument is that capacity deficit in formal justice system explains the popularity of informal justice mechanisms. Whereas the formal system continues to grapple with physical and economic inaccessibility, non-state mechanisms deliver relatively cheap, accessible, and expeditious settlement of disputes (Harper 2011; Wojkowska 2006). In terms of the political implications of institutional change, some authors have argued that rule of law reform would be confronted by resistance from non-state authorities who perceive such moves as threat to their political power and interests (Sriram et al. 2011).

A major shortcoming with this capacity-centered argument though is its inability to explain the survival of customary institutions where the formal state justice system has been capacitated and relatively functional compared to non-state institutions. The narrow focus on (in) effective state capacity limits understanding of situations where formal and informal institutional interaction leads to reciprocal reinforcement. Additionally, such an account assumes that informal institutions are endogenous to state failure—i.e., they emerged as a result of weaknesses in the state system.

But as discussed, unofficial customary justice systems predated even the colonial statebuilding

8 The term of “justice vacuum” was coined by Lubkemann et al. (2010) to mean areas where justice reform interventions have not only failed to improve justice and accountability but have resulted in declining access. In 2011, almost the same group of scholars note that vacuum is “a place in which the powerful, wealthy, and socially connected are able to secure unfair advantages in dispute resolution—often through the formal court (Lubkemann et al. 2011, 100). An example of state restrictions without an alternative accessible mechanism leading to justice vacuum is the blanket prohibition on the use of trial by ordeal (TBO), also known as Sassywood in Liberia. While the UN and human rights groups hail the enforcement of this prohibition as triumph for human rights, Isser et al. found that Liberians blame the ban for a litany of problems including: depriving them of a reliable and effective tool for investigating crime and keeping local order as well as leading to a drastic increase in what is considered the most pernicious problems of witchcraft (Isser et al. 2009; Lubkemann et al. 2011).

project (Englebert 2000), and have survived post-colonial modernization and post-conflict state reconstruction (Isser et al. 2011; Logan 2010).

Culture-based explanations attribute the popular legitimacy of traditional justice systems to their ability to resolve disputes in ways that are culturally relevant, acceptable, and familiar (Alie

2008; Huyes & Salter 2008; Obarrio 2011). From this perspective, the prevalence of customary institutions is construed in terms of specific characteristics and the type of justice they deliver in contrast to the modern state legal system. Here, the state system is juxtaposed with “informal justice processes capable of addressing cultural beliefs, norms, and practices that state courts or legislations ignore” (Kerrigan 2012, 75). Emphasising their intrinsic restorative attributes, traditional mechanisms are depicted in this literature as the appropriate medium to deal with private communal disputes such as witchcraft and sorcery, behaviour around sacred places, marital norms, and supernatural beliefs of acceptable behaviour. Culture-oriented arguments view local justice norms as intersubjective properties of a multiplex social unit which constrain individual preferences and therefore doubt whether imposition of international standards would achieve the expected change in beliefs and attitudes. When taken to the extreme, such arguments postulate that formal state justice systems would hardly become the forum of choice for the majority population in non-Western societies even if those systems were to deliver justice as effectively and efficiently as intended (Isser et al. 2009, 2011).

Although culture-based analysis is capable of complementing institutional arguments by underscoring the salience of nonmaterial values and identity, this line of thought tends to be essentialist with the tendency of gross overgeneralization about non-Western culture. In

particular, essentialist claims portray culture as deterministic or at least semi-primordial, deeply rooted in history, religion, ethnicity, and social organization. The resilience of customary justice institutions is explained in terms of their embeddedness in local customary practices linked to particular familial, ethnic, or clan-based affinities. Apart from cultural reductionism, such portrayal of culture risks being orientalist, which Edward Said (1994) describes as the propensity of Western Scholarship to depict non-Western societies as the alien, ahistorical, and unchanging

“other.” It was from this stereotypical depiction of non-Western culture that Abel (1982) links institutions and patterns of disputing in pre-capitalist societies exclusively to their social structure, defined as one in which relationships are multiplex, fundamentally undifferentiated, affective, and enduring.

It must be noted that these explanations are not mutually exclusive and both do not entirely challenge the view that formal state oversight and international principles should be used to eliminate discriminatory and arbitrary practices in customary justice systems. Some of these peacebuilding authors write from an international relations background that privileges the nation- state while others are trained in human rights law. Those who make institutional arguments are critical of the rule of law orthodoxy only to the extent of drawing attention to the effects of premature formal regulation (Baker 2010; Isser et al. 2011). In interrogating universalistic claims, these authors seek to provincialize the normative origins of international rule of law in

Western liberal democracies in order to make a case for an approach that is more sensitive to local contexts (Sriram 2011). Culture-based contention is not about challenging claims that customary practices such as trial-by-ordeal violate fundamental human rights but rather that supernatural problems such as witchcraft are prevalent in non-Western societies and legal-

rational institutions are by their very design ill-disposed to handle those matters (Isser et al.

2011). In other words, inasmuch as customary conflict resolution contravenes human rights standards, those methods must be appreciated for maintaining order in a realm beyond the competence of modern formal states—i.e., the irrational, illiberal, emotional, and spiritual arena.

Despite progress being made in demystifying customary justice practices, no attempt has been made to systematically theorize the interplay between justice norms, institutions, and the local political-economy in war-torn societies. An exception is Baker’s (2010) network analysis of linkages between state and non-state justice and security systems in the areas of intelligence gathering, shared equipment and training, joint patrols and operations, and enrolment. Some policy research papers have also focused on functional and rule-based linkages between formal and informal justice systems (UNDP et al. 2012; Wojkowska 2006). Yet these analyses do not take into serious consideration questions relating to political authority and social relevance of institutions in non-Western societies. Traditional authorities are portrayed as justice and security providers by default of the state’ inability to effectively or legitimately perform its functions, without fully appreciating their multiple sources of authority as well as the politics of customary institutions which the state itself may actively encourage or at least be complicit in perpetuating.

Moreover, these studies still assume the usual liberal public-private distinction with a tendency to bifurcate between state-constituted and civil society-based institutions. Although it is normally acknowledged that these categories are mutually permeable, attempts to produce greater conceptual gradation based on micro-level variations within the nation-state are rare (Sinha

2012). Analytically, there is paucity of understanding of diverse interplay between the rule of

law and societal forces in order to tease out multiple effects.9 It is not clear how the interaction of justice norms correlates with regional socio-economic development disparities, local authority structure, and connections between local and national elites in postwar societies.

Methodologically, the literature on rule of law in war-torn societies remains largely trapped in state-centric analysis fixated on national-level indicators to study countries with high degree of internal heterogeneity. Although the bulk of this research are qualitative case studies drawing often from historical and anthropological data, many rely on what Snyder (2001) calls “mean- spirited analysis” that “masks important differences in the distribution of traits as well as in the degree of dispersion of such traits” (98). A standard practice is to incorporate quantitative analysis to express in numeric terms national aggregate usages of customary justice mechanisms in contrast to the formal state system (Isser et al. 2011; Wojkowska 2006). Where attempt is made to go beyond numerical measurements to understanding particular customary practices, there is also the problem of “invalid part-to-whole” mapping. What this means is that “attributes specific to a well-studied area or especially salient unit are improperly elevated to the status of a national paradigm” (Snyder 2001, 98). Here, the literature would highlight certain ritualistic practices or mechanisms which are specific to a locality as if the whole nation possessed them or as if such attributes constitute customary justice systems as a whole. Apart from neglecting day- to-day common sense approaches, an almost exclusive focus on the well-known caricatures often ends up either castigating entire customary systems as irredeemably illiberal or romanticizing certain cultural attributes.10

9 Only a handful of studies have begun exploring the role of customary justice systems in building the rule of law in war-torn societies (Harper 2011; Park 2008). 10 For example, traditional justice systems are usually portrayed as restorative geared toward restoring social harmony, social interests, and victims’ condition. But Bennett (2012) argues that the case for restorative justice is

What accounts for these omissions is the lack of dialogue between international relations and comparative politics to combine macro-national perspectives with subnational variations to understand complicated political outcomes. For example, the literature on customary justice in war-torn societies is completely bereft of broader discussions about the institution of chieftaincy and politics of informalization even though these processes are central to the resilience of customary institutions in heterogeneous non-Western societies. My dissertation helps to bridge this disconnect in the literature in order to enhance deeper understanding of the rule of law engagement with customary justice systems in war-torn societies. This inquiry is guided by the following research questions:

 Why have customary justice systems thrived in war-torn societies despite being (mis)construed as a contradiction to (re)building the rule of law in those societies?  How do informal justice rules interact with the formal justice system in the context of liberal peacebuilding without being displaced by state-constituted institutions?

 Why should customary justice systems be made consistent with international rule of law standards when informality and flexibility are important hallmarks of customary institutions?  What should be the different functions/aims of customary and formal justice systems, understood in a broad historical/socio-political context of post-conflict reconstruction?

Study Context: West African Manor River Basin

Sierra Leone and Liberia are selected as the study context because they represent the only two

Anglophone West African countries demonstrating the forms of persistent state fragility that drive the questions of interest in this research. Initially, both countries have separate colonial

somewhat overstated as compromise settlement can only become a goal when long-term relationships are threated” (31).

experiences: Sierra Leone is a former British colony, Liberia came under domination of

Americo-Liberian settlers. But this different colonial history notwithstanding, these two countries constitute what Adebajo (2004) calls “West Africa’s tragic twins.” They are among the first in the sub-region to degenerate into brutal civil war in the early 1990s, in which structural weaknesses became a fundamental cause or aggravator. Both countries fit Mamdani’s concept of the “bifurcated state” as they have maintained dual legal regimes crucial to local governance of peripheral territories. While Sierra Leone inherited from indirect rule British common law alongside customary law, in Liberia a separate legal justice system was meant to protect the privileges of minority settlers against the indigenous majority population (Lubkemann et al.

2011). Moreover, legal dichotomy has been perpetuated in both countries by successor regimes in order to discriminate the distribution of citizenship rights and funnel local resources into ethno-clientelist networks in exchange for loyalty. As Richards (1996) describes, patrimonialism tended to connect national and local elites through patron-client linkages and fueled direct extraction of forest resources for personal gains.

Secondly, while these two West African countries are commonly regarded as “successful post- conflict states,” their political settlement seems weakly institutionalized and externally enforced

(Brown et al. 2005). Many observers of the peacebuilding process in these countries warn that each state is being restored in its previous form rather than being transformed (Dyck 2013;

Kandeh 2012). Thus, post-conflict state reconstruction has failed to “reconfigure political authority with an emphasis on decoupling state and government, distancing public power from private wealth, combating official corruption, and promoting mass welfare” (Kandeh 2012, 113).

Dyck (2013) argues that peacebuilding interventions have so far reneged on “creating a level

playing field to prevent the entrenched political class from drawing on and reproducing earlier forms of power relations and domination” (17). In both countries, the political-economy continues to be dominated by a relatively narrow group of elites and the operation of elite networks is crucial to understanding what drives or constrains change in the public sector. Brown et al. (2005) argue that “Sierra Leone’s political elites continue to face few substantive restraints on predatory behavior and few incentives to respond to the demands of the people” (2). For

Kandeh, the underlying problem is that “the modes of accumulation characteristic of the country’s governing elites are not conducive to the liberal governance agenda promoted by western donors” (106).

Thirdly, many researchers have argued that building formal institutions and infrastructure in both countries remains a crucial challenge (Isser et al. 2009; Sriram 2011). State-constituted institutions are not robust enough to enable efficient delivery of public goods and services, to build civic trust, or to enhance accountability between state and citizens. Rather, informal institutions and practices rooted in relation-based networks and social forms of governance are prominent. For instance, one study notes that “most rural Sierra Leoneans, who live under social forms of governance embodied in customary law and chiefs, continue to have few regular or substantive encounters with formal institutions and agents of the state” (Brown et al. 2005, 12).

In both countries, the majority population live under customary law and resolve their disputes through traditional justice mechanism.11 Applying the concept of customary sociality in Sierra

Leone, Fanthorpe (2005) contends that “traditional institutions, while deficient, still serve as a

11 Recent studies claim that customary justice systems account for about 80-90% of dispute resolution in both Sierra Leone and Liberia (Alie 2012; Alterman et al. 2002; Fanthorpe & Sesay 2009; Lubkemann et al. 2011; PICOT 2014).

defence against the putative realm of politics where loyalty and trust are at the disposal of the highest bidder” (45). As in Liberia, it is argued that the vast majority of Sierra Leoneans obtain primary rights of residence, land use, legal claims, and political representation as subjects of chiefdoms rather than as citizens of the state (Fanthorpe & Sesay 2009; Isser et al. 2009).

A final commonality for the purpose of this research is that ethnicity and regionalism continue to provide a ready source of political identity and political mobilization in both countries (Brown et al. 2005). Using traditional authorities to retain, reward, and extend ethno-regional political bases is common in most post-colonial African states. Usually, the political strategy is that “state resources and services are directed toward those areas in which support for the governing party is strong, while opposition strongholds are deprived of government resources” (Brown et al. 2005,

5). However, some authors have maintained that the politicization of chieftaincy in Sierra Leone and Liberia was to the extent that local chiefs were not only embroiled in grievances that caused the outbreak of civil war but also became a target of the ensuing violence and reform (Alie 2008;

Richards 1996). Consequently, it is assumed that the authority of chieftaincy would now be more susceptible to challenge compared to the pre-war period. This expectation is normally linked to the growing internal and external pressure on traditional authorities to be more open, accountable, transparent, and democratic (Fanthorpe 2004, 2005, Fanthorpe & Sesay 2009;

Lubkemann et al. 2011; Richards 2005). The war and post-war periods have generated new avenues for collective action and association beyond traditional hierarchical channels with far reaching implications on questions of legitimacy and authority to rule (Brown et al. 2005). Also, donor and NGO engagements in post-war reconstruction, civic education, legal empowerment, and conflict resolution have added further stimulus to the development of civil society and

pressure groups calling for greater accountability. A specific post-war phenomenon is the unprecedented increase in the number of community-based paralegal organizations whose activities have the potential of challenging the prerogative over conflict resolution that formal and customary institutions once commanded. Moreover, at the same time that national governments are under pressure to enhance postwar international human rights reputation, the stability of their local power bases continues to depend on maintaining loyal informal coalitions.

Subnational Comparative Method

This study adopts a small-N qualitative research design to enable the researcher to study justice reform within the context of history and the institutional setting of which they are a part (Bogdan

& Biklen 1992). The design has three relevant characteristics. Firstly, it provides important tools to examine qualitative questions about daily processes, procedures, and interactions of justice systems rather than simply quantitative outcomes. These tools are particularly relevant to examining customary justice systems which, as Harper (2011) argues, are usually embedded in broader belief paradigms with proceedings rarely kept in written records. Such a design also takes seriously social anthropologists who have insisted that an adequate assessment of traditional justice must be informed by archival research, judicial records, oral history, and detailed grounded ethnographic fieldwork. Obarrio (2011) notes that this kind of research is better able “to historicize genealogies of customary law, local authority structures, traditional conflict resolution, tracing their pre-colonial origins, colonial and post-colonial transformations”

(41). Invariably, only a case-oriented study can account for significant historical processes and outcomes by piecing evidence together in a manner sensitive to historical chronology and context (Ragin 1987).

Furthermore, customary justice is an emerging area in peace and conflict studies, meaning that there are no established theories from which to generate hypotheses about their interaction with the formal state system to be tested in a large-N sample. In the absence of well-established explanations that offer specific testable hypotheses, a qualitative design allows research to proceed both deductively and inductively. The inductive iteration between theory and evidence enables the researcher to identify finer levels of detail or lower level analysis than those contained in a priori theoretical expectations (Bennett 2008). Encountering such surprises provides opportunities to rethink the prior explanations of cases (Bennett & Checkel, 2013).

Additionally, dealing with a few cases means it is practically possible to conduct process tracing which Bennett and Checkel (2013) define as analysis of evidence on processes, sequences, and conjunctures of events within a case for the purposes of either developing or testing hypotheses about causal mechanisms. Process-tracing is a relevant instrument to examine spatially and temporally within-case evidence useful for deriving alternative explanations. This instrument is also suited to determine how initial conditions, sequences of event, and combinations of mechanisms / institutions concatenate to produce distinctive trajectories and outcomes. Walder

(2012) asserts that one concatenates causally relevant events by identifying the underlying causal mechanisms generating those events and linking constituent events into a robust causal chain that connects one or more independent variables to the outcome in question.

Lastly, this study assumes that negotiation of meaning is critical both to how people perceive justice and their interpretation of an effective justice system. This is an important consideration because, as Schaffer (1998) puts it, differences in cross-cultural understandings and translation issues can obfuscate clear communication and meaning (Schaffer 1998). Also, it is possible for

the researcher to arrive at reductionist and stylized understanding of meanings that mirror his or her own perception or those of dominant actors in the society in question rather than shared interpretation by those directly affected by justice reform. With such challenges, “important nuances can be lost and uncritical reproduction of dominant accounts of customary rules can become self-fulfilling prophecies” (Harper 2011:140). It is therefore imperative to adopt a research design that equips the researcher to capture as accurately as possible people’s own way of interpreting the meaning of justice within their own historical and institutional contexts. A quantitative study requires high level of abstraction and unit homogeneity which in turn sacrifices the accuracy needed to fully understand complex phenomena such as formal/informal justice interaction in war-torn societies. However, case selection in this qualitative design is at the sub-national level and below is a detailed discussion of the advantages and limitations of a sub-national comparative method.

Political science research on customary justice mechanisms is in line with growing scholarly interests in decentralization and local governance which go beyond national-level analysis to capture centrifugal forces of change in specific geographical regions. This focus on regions and inter-local analysis reflects not only a pragmatic shift to the quintessential arena of local politics in the developing world, but also a realization that state-centric approaches mischaracterize the strategic environment in which state-society relations are cast (Moncada & Snyder 2012; Sellers

2005; Sinha 2012; Snyder 2001). A decade ago, this realization culminated in the subnational comparative method which Snyder (2001) claims has the following potentials. Firstly, the use of subnational units is an effective strategy for increasing the number of observations when investigating a problem with many variables in a small number of cases with less danger of

conceptual stretching (Collier & Levitsky 1997). “A regionally differentiated perspective that highlights variation across subnational units in a country can make it easier to construct controlled comparison which in turn increases the probability of obtaining valid inference”

(Snyder 2001, 100). This strategy of enhancing analytical leverage is consistent with a long- standing claim that single or few case study research may contain many potential observations at different level of analysis that are relevant to the theory being built or tested (King, Keohane, &

Verba 1994; Przeworski & Teune 1970). For some qualitative researchers, this multi-site design means overcoming the problems commonly associated with traditional single case study without forgoing the advantages of qualitative research (Asher 2005; Bryman & Burgess 1994).

Furthermore, subnational comparison better equips the researcher to capture the spatially uneven nature of major processes of socio-economic and political transformation and to explore dynamic linkages among and within regions which is essential to understanding fundamental trajectories of coalition building and political change (e.g., democratization and peacebuilding). Snyder argues that “in addition to providing salutary increase in our ability to accurately describe complex processes, a focus on subnational units has important implications for how we theorize such processes” (94). For Sellers (2005), subnational accounts highlight the centrality of local contextual conditions that foster multiple local dynamics regardless of national boundaries. In a more radical decentered approach, Sellers insists that the most substantial analytical advantage of subnational comparison lies in “the ability to separate common features of localities and regions within nation-states from either overall national patterns or the influence of local agency” (435).

These advantages of the subnational comparative method make this approach especially well- suited for my study of customary justice systems which are essentially anchored in micro-level

social and political units. Both Sierra Leone and Liberia are located in the West African Manor

River basin characterized by major regional ethno-linguistic identities that usually shape justice norms and values (Harrell-Bond & Rijnsdorp 1974; Weilenmann 2011). In fact, there are discernible within-region variations depending on the local authority structure as well as the extent to which modernization processes have affected communal relations and social organization of society (Abel 1982). In this study context, what has emerged as a post-conflict state is synonymous to Seller’s (2005) archipelago of local logics in that beneath its official rationalized appearances from above, the state machinery operates according to local power dynamics. While rule of law programming may reflect donor preferences and conditionalities attached to foreign aid, the actual implementation of central policy agenda often depends on building coalitions within civil society (Manning 2009).

Perhaps the most important benefit of adopting a subnational comparative method in this study is the ability to maximize control over explanatory factors at the same time achieving some degree of independence among cases. Regions are made up of districts or counties which are further sub-divided into local administrative chiefdoms. By moving down this sub-national level of observation I am able to undertake comparative analysis both within and between regions in

Sierra Leone and between regions in this country and neighboring Liberia. Since chiefdoms within the same district share similar historical, ecological, and socio-economic conditions, it was possible to control for local justice norms in order to understand how differential access to functional state-constituted justice systems shapes the operation of unofficial customary mechanisms. Likewise, as you move from core to periphery areas, positions within the chiefdom authority structure (paramount chief and speakers, section chiefs, and village/town chiefs) shift

in tandem with declining formal institutional presence which in turn influences local power relations and regulative authority. By comparing chiefdoms across different regions, I am equally able to identify which interplay of justice norms, institutions, and power is specific to ethno- regional units and which interaction can be generalize across regions regardless of their intrinsic geo-cultural conditions.

A major challenge that tends to confound cross-level analysis is the Galton problem of subunits within a political system being interconnected instead of freestanding (King, Keohane, & Verba

1994). The problem is more acute for this kind of research that focuses on justice norms because of the potential for diffusion and borrowing among subnational regions in a country and between contiguous subnational units across neighboring countries. Additionally, the availability of extensive informal local elite networks may mean that positions within local authority structures constitute part of a grand chiefdom coalition linking village chiefs, to section chiefs and paramount chief, instead of independent layers of local power. Describing this problem as the challenge of “unbound processes and flows,” Snyder (2012) asserts that fluid and shifting subnational boundaries “make it difficult to determine precisely which actors, interests, and institutions should command attention in research” (9). However, regional boundaries in this study context have remained fairly stable in both pre- and postwar eras, even in the face of contemporary boundary delimitation for election purposes. Furthermore, the extension of my study sites to a region in Liberia provided an opportunity to limit the risk of diffusion effect on my overall analysis which “combines within-nation and between-nations comparisons of non- contiguous subnational units” (Snyder 2001, 97).

Case Selection

This study is based on the assumption that the social world is highly interconnected, and therefore understanding complex realities requires researchers to stay as close as possible to the construction of particular cases (Asher 2005; Geertz 1973; Gerring 2007). At the same time, it draws from Stake’s (1995) definition of “instrumental case study” in which cases are selected not because of their intrinsic value but because of their potential to provide insight into a general problem beyond a particular case narrative. According to Yin (2009), case study research is an

“empirical inquiry that investigates a contemporary phenomenon in-depth and within its real life context, especially when the boundaries between phenomenon and context are not clearly evident” (18). For Cresswell (2008), a distinctive feature of qualitative inquiry is the researcher’s ability to purposefully and intentionally select individuals and sites for an in-depth exploration of a central phenomenon. The standard criterion for choosing research sites and participants in a purposive sampling is whether they are information rich (Patton 1990). Among purposive sampling strategies, maximal variation sampling allows for the incorporation of multiple perspectives on a phenomenon of interest. But this “procedure requires that you identify certain characteristics and then find sites or individuals that display different dimensions of that characteristics” (Cresswell 2008, 214). Although a nonprobability procedure, this method is logical insofar as the researcher expects mainly to use collected data not to answer numerical questions but to “solve qualitative problems such as discovering what occurs, the implications of what occurs, and the relationship linking occurrences” (Honigmann 1982, 84).

Local governance in Sierra Leone and Liberia is based on a dual administrative system in that alongside the modern state machinery are chiefdom and traditional authority structures. The chiefdom is the basic unit of administration in regional areas and chiefdom authorities are inter

alia responsible for the maintenance of law and order as well as the custodians of land in their localities. Sierra Leone has three provinces—Northern, Southern, and Eastern—outside of the

Western area which comprises the capital city Freetown. The provinces are subdivided into 12 districts which in turn comprise 149 chiefdoms. Liberia is divided into 13 counties, 2 territories and the federal district of Monrovia. Counties are subdivided into districts headed by commissioners. While the sub-administrative units in Liberia are headed by paramount, town, and clan chiefs, in Sierra Leone they are paramount, section, and village chiefs.

The institution of chieftaincy in both countries is under the executive arm of government administered through the Ministry of Internal Affairs in Liberia and Ministry of Local

Government in Sierra Leone. Under the supervision of district officers or commissioners, chiefs are elected for life under Sierra Leonean customary law and for limited term in Liberia, although no election has been conducted in this country since the outbreak of civil war in 1989. Senior sub-chiefs and other notables in the chiefdom join the paramount chief and speaker to constitute the chiefdom council which serves as cabinet to deliberate on issues relevant to administration, security, and development of a chiefdom. In addition to these formal chieftaincy positions, there are a host of other traditional authority structures which together constitute what Alterman et al.

(2002) call auxiliary mechanisms. These mechanisms are presided over mostly by respected members of the local community including religious leaders, heads of social groups, leaders of women’s and youth groups, heads of secret society, household heads (see Figure 1.2 below).

Based on this administrative structure, cases within each country were carefully selected to reflect not only an equitable regional representation of the governance levels but also variation in state presence. Instead of aiming for a broader coverage of regions, three districts in addition to

the Western area in Sierra Leone were targeted for data collection at the chiefdom, section, and village levels (see map below of the West African Mao River basin). In the north, Bombali district was selected. This district is central to the administration of the Northern Province, although substantial parts of it at the section and village level remain largely impoverished.

Poverty in this district, reflective of the entire region, has been attributed to a combination of poor physical condition, inequitable structural policies, civil war devastation, and inaccessibility due to deplorable roads (Winnebah et al. 2006). The economy in this district is predominantly agrarian with crop and livestock farming serving as the main source of income and survival

(Mbawa 2014). Bombali is host to two ethnic groups that have been historically implicated in pre-war patrimonial politics (Limba and Temne) and other minority ethnicities including the

Loko group that has remained relatively marginalized (Cox 1976). Although this district is ethnically heterogeneous, the ritual character of its dominant customary institutions has often been contrasted with the more secular south-eastern region (Abraham 1985; Alie 1999).

Chieftaincy and secret societies in the north are usually heavily overlaid with rituals and ceremonies which Abraham (1985) links to strong Islamic influence from neighboring Guinea.

Chieftaincy in this region is also by customary law inextricably linked with secret societies, meaning that the paramount chief is expected to be head of the dominant cultural group and performs ceremonial functions in his chiefdom. To date, paramount chiefs are required by customary law to undergo a traditional training ceremony known as Kantha to be fully recognized and accorded the spiritual powers of chieftaincy. The ceremony may last for a maximum of one year and it is conducted by ceremonial chiefs who still serve as custodians of the traditional symbols of chieftaincy and exercise spiritual authority alongside or on behalf of

the paramount chief. The training component is designed to give paramount and section chiefs the opportunity to be taught the customs and traditions of a chiefdom by elders who are versed in customary law and have served previous paramount chiefs.

Figure 1.1: Map of Study Sites

Site 2

Site 1 Site 3

Site 5

Source: Conciliation Resources (accessed on 12 March 2014)

The eastern region is represented by the mining district of Kono. In addition to being a major battle ground for the two dominant political parties and playing host to the indigenous Kono people, land access is an important issue in this district. Although Kono is popularly known for diamond mining which fueled patrimonial politics and the civil war (Reno 1995, 1998), it shares

similar characteristics with the north in terms of deplorable physical infrastructure, inaccessible peripheral areas, and a dominant agrarian economy. More than half of Kono (as in most of the eastern region) depends on plantation cash cropping which suffered years of neglect associated with the civil war and falling world market prices (Winnebah et al. 2006). While sharing geographical boundaries with adjacent Mendeland, the customs and tradition governing the institution of chieftaincy in this district gravitate more towards the north. For example, unlike the long-standing tradition of female paramount chieftaincy in nearby Mende mainland, customary law in Kono forbids women from heading a chiefdom just as in the north.

Moyamba was chosen as an apt representation of the southern region because this district embodies the major socio-cultural and political characteristics that set apart the Mendes, the largest ethnic group in Sierra Leone. As the entire region, Moyamba is central to the political history of Sierra Leone being a traditional stronghold of the country’s oldest political party and home of prominent national political figures, especially the Margai family whose sons became first and second prime ministers of Sierra Leone. A majority Christian population, the people of

Moyamba are known for their unique blend of indigenous culture with liberal secular values, a characterization normally linked to the district’s early exposure to Western education and close relationship with the colonial administration in the colony. At the time of this research,

Moyamba had the highest number of female paramount chiefs in contrast to the other selected districts where this customary institution was exclusively male dominated. Also, the district was the provincial focal point of the UK-funded Justice Sector Development Program (JSDP), a flagship reform program aimed at strengthening the capacity of justice sector institutions to

deliver rule of law justice in postwar Sierra Leone. Moyamba hosts bauxite and rutile mining activities but these were adversely affected by the decade-long civil war.

The Western area contains Sierra Leone’s capital, Freetown, which was originally located as a settlement for freed slaves from North America and then became a British Crown colony. As the seat of central bureaucratic and judicial power, the formal justice system and social amenities are concentrated in Freetown. The descendants of liberated slaves who became known as the Krios were the first to be exposed to Western civilization and education in the colony but have been outnumbered by Sierra Leoneans of indigenous origins who migrated to Freetown from provincial areas in search for economic and social opportunities. Migration to this area was also fueled by the civil war which rendered the majority of rural inhabitants internally displaced.

Despite the fact that majority of residents in the Western area are of indigenous origins, the application of customary law in this zone is prohibited and traditional authorities are known as tribal heads. Apart from a few intermittent invasions, the region never came under the sustained control of rebel groups and Freetown was relatively spared of infrastructural destruction during the civil war. Additionally, the majority of donor supported justice sector reform projects have been implemented in the Western area.

In Liberia, the main site of study was the Krahn homeland of Grand Gedha County in the southeastern part of the country. The primary rationale for choosing this region was to be able to extend this study to sub-national unit in Liberia that is non-contiguous to districts under study in

Sierra Leone. The Krahn people have an ethno-linguistic background that is unique to the history of Liberia and the geographic location of this county makes regular interaction with indigenous

communities of Sierra Leone relatively limited compared to contiguous counties such as Lofa and Grand Cape Mount. Moreover, Grand Gedha County shares similar chieftaincy authority structure found in Sierra Leone and exhibits varying degree of formal state presence between administrative core and periphery rural areas.

Data Sources

This dissertation is a product of an extensive qualitative fieldwork conducted over six months

(February-August 2014) using the following data sources:

In-depth interviews. Using a semi-structured questionnaire, in-depth interviews with participants in justice sector reform in both countries represent the main primary source of data. Most of the respondents identified for these interviews are actors in customary justice systems including local chiefs, local court officers, community elders, and representatives of various groups based on their socio-economic status. In order to obtain a representative sample of traditional authorities, the local authority structure in each country which identifies the paramount chief as head of a chiefdom followed by a section chief and town/village chief was followed (see Figure

1. 2, authority mapping below). I interviewed approximately 26 paramount chiefs, tribal heads, and speakers, 28 section chiefs and tribal subheads, 15 local court staff, and 22 town heads, mammy queens, and youth leaders.

Figure 1.2: Local Authority Structure INFORMAL FORMAL

CAPITAL Central Government Supreme Court Tribal/Village headmen Court of Appeal

PROVINCE / REGION High Court / Circuit Court

DISTRICT / COUNTY Local Council Magistrate Court Customary Law Officer

CHIEFDOM Paramount Chief

Chiefdom Speaker Councillor NGO Paralegals Section Chief Local Courts/JP Courts

Chiefdom Youth & Women’s Leader Section Speaker

Society Heads “Big Men” Town Chief Tribal Authorities

Pastor/Imam Women’s Youth Compound/Family Leader Leader Head Source: Adapted from R. E. Manning, World Bank (2009)

To obtain information on formal regulation of customary justice and expert opinion on the interaction between justice systems, the following policy makers and practitioners were also interviewed: customary law officers, chiefdom administrators, provincial judges and magistrates, human rights lawyers and activists, representatives of NGOs and donor partners, and other government officials. A particular source of relevant information on primary justice systems were community-based paralegals whose legal empowerment activities enabled them to straddle both the formal and traditional justice systems.

These respondents were selected / identified by several methods. In most cases, the person would be an official in a formal or informal position of authority (chief, judge, law officer, local court clerk, etc.). It was also necessary to use a “snowball” technique whereby the researcher asked a respondent to identify another source of importance to interview (for example, a paramount chief suggested his speaker or section chief who in turn recommended town/village chiefs). These interviews took place in locations where customary practices are observed spanning from urban, semi-urban, to rural areas.

Observations. This source of data took the form of what Asher (2005) calls “involved observation” which requires some level of involvement in a site but precludes any attempt to participate in the ongoing life and processes of the setting. This technique is useful “where the researcher does not need prolonged observation and / or has not the time required for maximum immersion and participation in the explored site” (70). It allows the researcher to participate in site activities only to the extent that such participation is unobtrusive of the natural environments in which people experience their lives (Bogdan & Biklen 2007). Involved observation proved extremely instrumental for this research because it allowed me to do observation and access other data sources concurrently. For example, during the process of consulting, arranging, and conducting interviews I had the opportunity to observe power structures and power relations as well as how they affect and impact the dispensation of justice and reform. Since reform processes were ongoing at the time of this fieldwork, it was equally possible to observe first- hand the meetings, negotiations, confrontations, bargaining, and pacts between stakeholders including deals and compromises that were “off the official records.”

Spending a minimum of 1 month in each district provided a reasonable period to observe routine dispute settlement activities of both official and unofficial primary justice systems. Proceedings of the state-constituted local courts and mediation processes of community-based paralegals were observed at the same time as were the processes of informal courts operated by local chiefs.

A significant area of interest in these observations was the power dynamics among these different dispensers of justice at the chiefdom level. These interactions are shaped not only by physical settings and official linkages, but also through informal rules and norms and symbolic communications that structure power relations. Considering the potential for overlap in areas of authority and jurisdiction, I was particularly struck to find out that these mechanisms often operate in close physical proximity in chiefdoms like Gbendembu-Ngowahun, Gorama-Kono, and Mano Dasse. In contrast to numerous human rights reports that portray decision-making in chiefs’ court as arbitrary and corrupt, I was equally surprised to realise that chiefs’ courts often operate on the same common sense principles found in the state-constituted local court system and paralegal mediation processes. While in the north, my fieldwork also coincided with a typical traditional ceremony at Paki-Massabong chiefdom intended to spiritually pave the way for the paramount chief to undergo his Kantha rites, an elaborate installation process (sometimes lasting a year) designed for traditional leadership training including dispute settlement. The paramount chief is a Member of Parliament representing Bombali district and officially recognized by the national government but powerful ceremonial authorities of the chiefdom insist he must undergo this customary procedure to be fully legitimate.

In addition to observation at the operational level, I attended a number of consultative conferences and meetings on local governance reform organized by internal affairs ministries,

NGOs, and civil society organizations. Specifically relevant were two deliberative conferences between paramount chiefs and civil society organizations in Sierra Leone intended to develop position papers in tandem with review of that country’s national constitution. The first meeting was a major conference of the 149 paramount chiefs or their representatives convened by Green

Scenery in collaboration with other NGOs on 14 May 2014 in the Southern district of Bo. This forum was aimed at developing a position paper on large-scale land acquisition and use in the face of growing foreign direct investment in provincial areas. I was appointed as repertoire for one of the group work sessions in which paramount chiefs from the same district discussed issues relating to land tenure and the role of traditional authorities in protecting community interests. Being in the midst of local chiefs as they discussed issues of collective interest was a rare opportunity for very close observation of how coalitions and compromises are struck. The second meeting I attended was a roundtable dialogue organized by a coalition of civil society leaders known as the Chiefdom Governance Reform Campaign Team. Convened on 27 June

2014 at the northern headquarter town of Makeni, this was an assembly of the National Council of Paramount Chiefs’ executive members with the objective of harmonizing civil society and chiefs’ position on chiefdom governance reform. It was a high panel meeting including top local government officials and in which crucial issues relating to democratic chieftaincy reform were discussed in a very tense atmosphere.

Archives. Another primary source of data was national and provincial archives. The national record departments in Freetown and Monrovia house original source materials such as chronicles, memos, letters, newspapers, colonial ordinances, official government documents, and transcripts of speeches. For documents on postwar reform policies and legislations, government

ministries in charge of local governance and the justice sector were useful. These documents include acts of parliament, position papers, reports of consultative processes, policy briefs, project report, training manual, internal memos, etc. In some instances, these documents are available upon official request but in most cases informal connections and good rapport with officeholders opened the door to access. Provincial archives were not easily accessible as some had been destroyed by war and others neglected for long. However, many traditional authorities have personal copies of important administrative documents and local historical records that were made available to the investigator. Usually, local chiefs and chiefdom administrators would disclose they were in possession of such documents during interviews with them, but put together these ad hoc offers became a sizeable collection of original historical material unavailable even in national archives. Another set of records accessible in rural areas were local court case catalogues which, although not comprehensive for systematic analysis, gave an indication of the frequency and nature of cases reported to the state-constituted court system.

Ethical Considerations

As investigator in this study I am an African with past experiences in conducting research on transitional justice processes in Sierra Leone. As an insider, I had easy access to both countries because of my knowledge of the socio-cultural settings, ability to communicate in some African languages, and familiarity with local contexts. The familiarity with local African contexts was not only useful for facilitating access to communities, but also relevant in interpreting meanings and understanding symbols of communication that were not obvious to an “outsider” observer.

Previous work also meant I had some contacts of justice practitioners and local actors who were relevant to this study. I was also aware of the formal requirements to access information in these

countries and the informal protocols to contact and communicate with Africans. Such requirements / protocols were developed and formally approved by McGill University’s

Research Ethics Board prior to data collection.

Since the study was dealing with human participants, ethical considerations were important.

Also, chieftaincy reform remains an emotive issue in both countries and conducting research on traditional courts that have been declared illegal by national governments involves some obvious sensibilities when disclosing information about their operation. Initially, considerable effort had to be put into ensuring the confidentiality of participants. Personal and contact information of respondents were coded to avoid any disclosure of identity and data were stored safely through the use of secret computer passwords and multiple location methods. Before interviews, every participant was informed about the nature of the interview (or observation), purpose of the research, and expected benefits or cost of participation. No interview or observation was conducted without prior informed consent of a participant and assurance that such consent could be withdrawn at any point, without any cost to the participant. Interviewees were not paid for participation, and they were asked to sign a form of their understanding of the research and approval to be interviewed. For those who were not literate in English and who would have been embarrassed if asked to sign a form, oral consent was obtained in lieu of a formal procedure.

It is true that familiarity with local cultures may pose difficulties in separating the researcher’s values from his analysis of data, but this does not mean the enterprise was in any way compromised. Rather, the inter-subjective nature of the study required that procedures are transmissible and replicable. This meant every step in data collection and analysis be made

public, described, and justified in sufficient details. As Bogdan et al. (1992) argue, “part of the scientific research method is to be open-minded about method and evidence” (39). The use of multi-methods provides opportunity to triangulate information from different sources, an important procedure to identify and rule out distorted information and biased interpretation.

Data Analysis

Without a systematic and transparent procedure, analysis of qualitative data would have to rely entirely on the researcher’s impression and intuition (Dey 1993). Asher (2005) defines data analysis as “the process of bringing order, structure, and coherence to the mass data collected and thereby arriving at an understanding of its meaning” (79). Unlike quantitative data which can be analyzed by enumeration, qualitative data analysis focuses on deriving meaning through conceptualization, interpretation, and analysis. For generating concepts, Atkinson (1983) recommends immersion of oneself in the data in order to search for patterns, identify possible surprising phenomena, unusual occurrences, and being sensitive to inconsistencies such as divergent views between or within groups of individuals. Bryman and Burgess (1994) posit that

“identification of differences in the data can be helpful in elucidating relationships among concepts and establishing linkages that may form the basis for the development of theory” (7).

Data collected in this study is for the purpose of developing a rule of law / customary justice typology using thematic analysis without losing sight of context (Asher 2005). My thematic analysis is guided by Ian Dey’s (1993) approach to qualitative data analysis, propounded later by

Kitchen and Tate’s (2000) work on conducting research into human geography. This approach uses an “omelette” analogy to infer that just as preparing an omelette requires breaking eggs, so

too analysis of qualitative data necessitates breaking down data into bits followed by reorganizing these bits in new analytical order. Accordingly, “the process of analysis involves resolving data into its constitutive components to reveal its characteristic elements” (Dey 1993,

30). This approach stresses three logical procedures including: description, classification, and connection (Dey 1993, Kitchen & Tate 2000).

For Dey, “the first step in qualitative analysis is to develop a thorough and comprehensive description of the phenomenon under study” taking into consideration “the context of action, intention of actors, and the processes in which action is embedded” (31). This initial phase is intended to situate actions within their wider social and historical settings and includes detailed description of relevant social contexts (institution, culture, society, etc.), time frame of action, and networks of social relationships. Through accurate description of the variety of contexts in which data are collected, actors’ motivations and perceptions can be examined “through rules of the game, their cultural significance, social organization, as well as their psychological or economic rewards” (37). In this research, this procedure entailed a narrative account of not only the overall study context but also thick description of subnational regions in which cases were embedded. This emphasis on taking into consideration background social forces rests of the assumption that “we cannot rely on subjects to give a rational account of their intentions nor can we infer intentions unequivocally from their behavior” (Dey, 38).

Classification is Dey’s next stage of qualitative analysis and involves sorting data according to relevant characteristics. This is a more rigorous analytical phase that requires iteration between data and ideas so as to “develop conceptual tools through which to apprehend the significance of

social action and how actions interrelate” (Dey 41). Classification is followed by the final stage which constitutes establishing connections between / among data categories. If concepts are the building blocks generated in the categorization phase, identifying associations between categories is bringing the blocks together to produce a building. However, this final schematic classification is about logical relations of hierarchy and subordination: some concepts are subsumed under more abstract classification while others may be subdivided to produce more comprehensive classifications. In the process of establishing associations, patterns within the data are identified paying attention to regularities, variations, and singularities. This final stage is synonymous to the four interrelated stages that Collier et al. (2012) argue are integral in concept formation: clarifying and refining their meanings; establishing productive connections between these meanings; situating the concepts within a constellation of concepts (semantic field); and identifying hierarchical relations among them (kind hierarchies). Developing levels of classification and funnelling data into relevant categories is not a neutral process—it is always for a purpose. In this analysis, classification entailed breaking up data into regional and chiefdom level issues in line with local authority structures. The purpose was to enhance subnational comparison between regions both in Sierra Leone and to extend this comparative analysis across to neighboring Liberia.

Structure of the Dissertation

This chapter has outlined the research problem of interest in this dissertation by briefly reviewing the conventional approaches through which customary justice systems are engaged in rule of law programming and post-conflict peacebuilding in general. In addition to stipulating the research questions guiding this inquiry, the chapter also contains an overview of the methodology to be

employed for locating study sites, research participants, data collection, and data analysis. It has been noted that the comparative analysis of institutional interaction will be largely sub-national so as to capture multiple layers of complexity in the traditional authority structure as well as important regional variation. In providing rationale for the study context, the introduction has also underscored the duality in Sierra Leone and Liberia which are usually viewed as typical cases of a “successful” international peacebuilding model at the same time that informal structural conditions remain rife in their war-torn societies.

Chapter two proceeds with an extensive review of the literature on post-conflict peacebuilding.

The main objective of this review is a detailed analysis of the conventional liberal peace model, focusing on its institutional, normative, and ideological assumptions. Using a critical theory perspective, the chapter explores the extent to which the “statebuilding as peacebuilding” approach privileges formal institution building at the expense of developing the capacity of informal institutions. Following this is an in-depth examination of the rule of law both as a concept and practical peacebuilding framework within the context of post-conflict peacebuilding.

In addition to the legal and technocratic challenges of operating in weak institutional environment, this aspect raises questions about the political and cultural implications of transplanting institutions from the West into war-torn societies. The chapter ends by examining peacebuilding within the African context. Subjecting the state failure discourse to a more critical scrutiny, the objective here is to question untested assumptions about legal-rational authority drawing from area studies literature on informal institutions in Africa.

Chapter three presents a historical background of state formation in Sierra Leone and Liberia, focusing on state-society relations in order to unravel the extent to which traditional authorities were implicated in postcolonial patrimonial rule prior to civil war in both countries. The chapter begins with the political history of the two West African states, examining their institutional and political linkages with traditional authorities from colonial rule until the outbreak of civil war in

1989 and 1991 respectively. The remaining sections focus on the period of armed violence and pays close attention to the role of traditional institutions in shaping the nature and conduct of violence. While the dominant literature considers traditional authorities as mainly a target of an agrarian rebellion, this chapter views traditional actors and institutions as active participants in war shaping the trajectory and outcome of conflict. This historical foundation serves as a prelude to examine the peacebuilding agenda in terms of the major processes and actors involved in rebuilding the rule of law as well as exploring their motivations, preferences, and strategies.

Chapter four examines the liberal peacebuilding agenda following the end of civil war in both countries in early 2000s. Since the agenda is largely influenced by liberal-democratic principles, the chapter devotes more attention to the place of traditional authorities in a post-conflict environment influenced by external donors and civil society organizations calling for modern governance systems. Usually, the internal call for liberal-democratic governance in this context is reinforced by donor partners who condition their funding and technical support on transitional governments’ commitment to upholding the rule of law. But while operating a donor-dependent economy constrains national governments to acquiesce to demand for political and economic liberalization, these national elites have to build a large enough local coalition to remain in

power in the post-conflict period. How the transitional governing elites manage this tension is the primary focus of this chapter.

Chapter five begins with a sub-national analysis of the challenges and implications of making customary justice systems consistent with international rule of law standards, concentrating on the complex interplay of institutions, norms, and power. This aspect of the dissertation is about the impacts of justice sector reform as well as the interaction between informal customary and state-constituted justice systems in the context of postwar state reconstruction. In particular, this chapter draws attention to an often neglected local dynamic in African countries with a history of colonial indirect rule—the existence of parallel official and unofficial justice systems. In the absence of official linkages between these parallel primary justice systems, the chapter focuses on their informal relations with multiple implications for traditional authority and access to local resources. These relations occur within the broader state-society complex but are fundamentally shaped by micro-political dynamics and conflict resolution needs at the sub-national level.

Although the narrative is in the form of a collective case study of rural Sierra Leone, premium is placed on analysis of inter-regional patterns in addition to within-case dynamics of the local authority structures in the interior. For example, the perspectives and experiences of paramount chiefs are contrasted with sub-chiefs at the section and village levels of chiefdom administration.

In order to specifically analyse the power dimension of institutional reform, the main source of data in this chapter are in-depth interviews with judicial officials, traditional authorities, and other community stakeholders.

Chapter six focuses on the interplay between rule of law and customary justice norms outside the provincial areas of Sierra Leone—the western area of Freetown and the Grand Gedeh County in neighboring Liberia. Freetown is unlike the rural parts of Sierra Leone in that the application of customary law in this metropolitan region has been prohibited and there are no state-constituted local courts systems. Therefore, the chapter explores why tribal courts continue to be a popular forum among Sierra Leoneans of indigenous origin and how these “illegal” mechanisms operate in a context dominated by formal English law and with the highest concentration of state justice systems. This case stands out as a different institutional context because of the density of formal state institutions, availability of information about the rule of law, and an increasing level of human rights awareness/activism. Moreover, the absence of local courts means interaction with the formal system is based on vertical power relations instead of the horizontal dynamic between parallel primary justice systems in rural areas.

The case of Grand Gedeh shows that while Sierra Leone and Liberia have similar legacies of indirect rule and modern state formation, their postwar justice reforms differ in important ways at the institutional and legal levels. The administration of customary courts is still under

Liberia’s Ministry of Internal Affairs and traditional chiefs have legal authority to adjudicate dispute based on customary law. Contrary to rule of law principles, Liberia continues to operate a parallel justice system known as administrative adjudication in which official review of customary law matters is conducted by administrative staff of the ministry. But beyond this legal institutional framework, the County of Grand Gedeh offers an opportunity to examine the administration of primary justice in a practical sub-national context where enforcement of formal rules is relatively weak and traditional authorities are crucial to conflict resolution.

These two additional cases focus more on questions of legitimacy and social relevance of local justice norms and therefore closer attention is paid to the experiences of local residents who use multiple forums to resolve their disputes. The comparative institutional analysis is aimed at illuminating the socioeconomic and cultural factors that motivate individuals to seek recourse outside the formal justice system. At the macro-structural level, the chapter explores how the social structure and informal political economy of war-torn societies affect people’s conception of what constitutes an effective justice system and their conflict resolution needs. The analysis also demonstrates the areas of tension as well as convergence between local justice and global rule of law norms from the perspectives of communities mostly affected by post-conflict justice reforms. There is an emphasis on justice norms across cases but the inquiry also takes note of conflict resolution needs and priorities that are specific to any region in both countries.

Chapter seven is divided into three major sections. The first provides a summary of the findings, demonstrating how the research questions in this study have been answered. One major finding is that local communities define an effective justice system in terms of its ability to dispense affordable, credible, and accessible justice to the majority population. Accessibility is a central concern and local communities are interested in the economic and social costs of using a particular mechanism to seek redress. However, building the technical and professional capacity of state institutions often ends up restricting or reducing access to justice. The second section outlines major conclusions regarding the circumstances under which the relationship between formal and informal justice systems tends to be either cooperative or conflictual. It is concluded that primary justice systems interact in mutually reinforcing and undermining ways based on the particular interplay of justice institutions, norms, and power at the sub-national local level.

Finally, the third section presents the broader contributions and implications of this study for theory development and policy innovation in the field of peacebuilding in Africa and beyond.

CHAPTER TWO Literature Review and Conceptual Framework

Introduction

This chapter proceeds with an extensive interaction with the literature on post-conflict peacebuilding in three sections. The first is a detailed analysis of the liberal peace thesis, focusing on its institutional, normative, and ideological assumptions. Using a critical theory perspective, this review explores the extent to which the “statebuilding as peacebuilding” approach privileges formal institution building at the expense of developing the capacity of informal institutions. It shows how an externally-driven peacebuilding agenda that emphasises the restoration of state authority often ignores questions of social justice and misses opportunities to build on alternative ways of establishing social order despite calls for local ownership. The second section explores in-depth the rule of law as a concept and practical peacebuilding framework. It begins with a conceptual discussion to explore both the procedural and substantive definitions of the term as well as its operationalization in the context of post-conflict peacebuilding. Beyond the legal and theoretical debates, this section draws on the policy literature to understand what rule of law entails in terms of legal and justice sector reform following the end of intrastate conflicts. The final section examines peacebuilding within the

African context which now accounts for the largest regional concentration of external-driven interventions by the UN and other international actors. Subjecting the state failure discourse to a more critical scrutiny, I examine how certain untested assumptions about public authority in this literature serve to legitimize the Westphalian statebuilding project and the development of legal- rational institutions often with little regard for historical and cultural factors outside the West.

Statebuilding as Peacebuilding Model

Since the end of the Cold War, the nature and conduct of violent conflicts have undergone a number of unprecedented changes which confound conventional approaches to international peace, security, and justice. In a 2014 report on peacebuilding in the aftermath of conflict, the

UN Secretary-General states that “advancing the extension of state authority and rebuilding state institutions is crucial to the sustainability of peace” (2). Noting that building strong and effective institutions is now a critical task for the UN system, he outlines two benefits: (i) establishing

“effective and legitimate state institutions that deliver public services reduce incentive for violent conflict, and (ii) strengthen a state’s resilience in the face of possible renewed violence” (10).

This approach dates back to the 1990s when An Agenda for Peace shifted from terminating armed conflict to a broader conception aimed at strengthening and solidifying peace in order to avoid a relapse into violent conflict (Boutros-Ghali 1992; Brahimi 2000). This broader use of the term also indicates that peacebuilding ought to address the underlying structural causes of conflict by embarking on institutional reforms crucial to the cultivation of a culture of accountability and good governance (Keating & Knight 2004).

Reliance on statebuilding to consolidate peace and prevent a recurrence of violent conflict has been dubbed “statebuilding as peacebuilding” and at the core of this approach is an attempt to re- establish the social contract in war-torn societies (Paris & Sisk 2009; Richmond & Franks 2009).

According to Richmond (2011), the “liberal peace” is based on an expectation of a post-conflict social contract between citizens and their leaders within the framework human rights and democratic norms. “The social contract entails a consensual relationship between state institutions, government, and its peoples, in which the latter defer some of their freedoms in

return for resources and security provided by the state” (44). “Where the state has the will and capacity to deliver its functions, meet public expectations and uphold its obligations to protect human rights, the population is more willing to pay taxes, accept the state’s monopoly on the legitimate use of force and comply with rules and regulations” (Department for International

Development 2009, 15). In other words, the state is expected to demonstrate a minimum level of functionality and will to provide these basic functions including safeguarding the human rights of their populations. In return, citizens have obligations to the state to pay taxes, accept the state’s monopoly on coercive force, and other curtailments of their freedom (DFID 2010). Also, the contract establishes rules of the game, “focusing particularly on issues such as defining the mutual rights and obligations of state and society, negotiating how public resources should be allocated, and establishing different modes of representation and accountability” (DFID 2009,

15)—and as such constitutes the fundamental source of state resilience (OECD 2009).

This growing pre-eminence of institutions—rules of the game and the organizations that frame and enforce them—as a crucial element of peacebuilding is clearly reflected in the 2011 World

Development Report (WDR) on the theme of conflict, security, and development.12 This report attributes recurrence of violent conflict in the developing world to weak state capacity and paucity of legitimate institutions. Weak security and defence capacities undercut states’ ability to mitigate stresses that may induce organized violence including armed threats posed by rebel or organized criminal groups. A group contemplating the use of political or criminal violence, the

12 In addition to the World Bank, other multilateral and bilateral agencies have paid particular attention to the link between weak institution and violent conflicts. These include the Organization of Economic Cooperation and Development (OECD); the British DFID, the UN Peacebuilding Commission, etc. See DFID, policy paper on Building the State and Securing the Peace (2009) and practice paper on Building Peaceful States and Societies (2010); OECD, Principles for Good International Engagement in Fragile States and Situations (2006); OECD Journal on Development, Concepts and Dilemmas of State-building in Fragile Situations: From Fragility to Resilience (2009).

report notes, is likely to find that option feasible knowing that the country’s security forces have inadequate intelligence and coercive capacity to counteract such a move (also DFID 2010).

The report also states that socioeconomic inequalities and abject poverty make opportunities provided by conflict attractive and mean individuals have little to lose by getting involved.

Without inclusive institutions to ensure equitable distribution of public resources, war economies become viable sources of livelihood, providing access to lootable resources and illicit trade.

Furthermore, groups that feel inadequately represented and / or protected by existing political and economic institutions are easier to mobilize for violence. The UN warns that “radicalized ideological movements stand ready to harness these sentiments, inciting marginalized groups, unemployed youth, and criminal elements to challenge the established order through violent means.”13 “If the geographic, ethnic, or religious community an individual belongs to is excluded from political and economic opportunities, that person will have less to lose by resorting to rebellion or crimes” (WDR 2011, 88). The report thus concludes that countries with the weakest institutional legitimacy are the most prone to instability and the least able to respond to internal and external shocks. Similarly, Paris and Sisk (2009) emphatically argue that “without adequate attention to institutional strengthening, war-torn states would be less likely to escape the multiple and mutually reinforcing traps of violence and underdevelopment” (3).

Consequently, the postwar period is seen as the opportune moment for refashioning this new social order with external actors playing an influential role.14 For instance, the UN begins to

13 Report of the UN Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies, October 2011, p. 4. 14 Often reference is made to the Versailles Agreement which created an opportunity for external powers to influence state formation in postwar Europe (Ikenberry 2000).

influence the nature of this new compact through its Security Council resolutions and by serving as guarantor to peace agreements which are quasi-constitutional documents forging a new political deal between the state and its competitors. External actors assume more substantial roles in peace operations. As of December 2014, there are 123,560 uniformed and civilian personnel

(apart from other interventions by the NATO, EU, AU, etc.) in 16 UN peacekeeping operations around the world, “undertaking postwar stabilization, peace support, peace implementation, and protection of civilian functions” (OECD 2009, 91). There has been a massive shift in global governance arrangements in recent years not only in terms of the rising number of such interventions but also in broadening their scope to include in particular the restoration of the rule of law in war-torn societies. In some countries like Timor-Leste and Kosovo where the UN is mandated to constitute a transitional administration, peacekeeping missions have assumed direct executive roles in maintaining law and order in interim periods. In other areas, the advisory roles of external actors have been so influential as to allow the transmission of international norms and standards into war-torn societies.15 In 2005 the UN Peacebuilding Commission was established to focus attention on the reconstruction and institution-building efforts necessary for post- conflict recovery and to support the formulation of integrated strategies in order to lay the foundation for sustainable development. Focused on the security-development nexus, the commission is also expected to bring together relevant actors and marshal resources within and outside the UN system.

15 Through its peacekeeping interventions, the UN has used its influence to establish normative boundaries and introduce international standards in a number of areas. For example, in 2004, the UN Secretary-General maintained that United Nations tribunals would never allow capital punishment and United Nations-endorsed peace agreements could never promise amnesties for genocide, war crimes, crimes against humanity or gross violations of human rights (UNSC, Report of the UN Secretary-General on The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies, August 2004; for detailed argument on the institutionalization of these international norms see, Megan MacKenzie and Mohamed Sesay, “No Amnesty from/for the International: the Production and Promotion of TRCs as an International Norm in Sierra Leone.” International Studies Perspectives 13 (2012).

This preponderance of external interventions calls into question the viability of the “statebuilding as peacebuilding” approach itself. At the onset, dominant external influence replaces what is supposed to be an ongoing endogenous political process (Cohen et al. 1981) with legal institution building that fits into donor preferences, priorities, and deadlines (Albrecht 2010; Denney 2013,

2014). Attention is paid more on elections and other formal aspects of democracy with heavy reliance on expatriate technical assistance which is often project-related and donor-driven. As the

OECD report on the dilemmas of statebuilding in fragile situations notes, this approach removes statebuilding from the context of state formation which is “the dynamic, historically-informed and contingent process by which states emerge in relation to societies” (72). A narrow focus on aspects that are amenable to technical institutional fix obscures the underlying historical and structural legacies which determine what kind of political change is possible and sustainable in the post-conflict context. And failure to problematize the state itself in the non-Western world usually means subsuming structural and social issues into a technocratic question and reproducing the same institutional framework that is being contested by competing actors. In particular, international actors have tended to focus on strengthening state institutional capacity—perhaps reflecting the instruments available to them—with relatively little attention to questions of relevance and legitimacy in their operational sense (OECD 2009). So far, the outcome of capacity building has been “empty states in which institutions, politicians, and technocrats prosper but the local population are marginalized, negating the possibility of a progressive form of civil or social peace” (Richmond 2011, 52). The emphasis on liberal governance often leaves structural inequalities intact and divorces peacebuilding from discussions of global capitalism and the redistribution of resources (Curtis 2012).

Another problem, according to Curtis (2012), is the tendency for peacebuilding to be highly prescriptive with peace being defined from the perspectives of powerful societies, international institutions, and expatriates. Top-down prescriptive formulas have persisted despite a discursive shift to the language of local ownership which calls for the development of institutions that reflect relevant social norms and draws on practical local knowledge as the basis for sustainable peacebuilding (Zaum 2012). Curtis affirms that “peacebuilding programming is often driven by external ideas and by the disciplinary power of external norms rather than by the meanings and values within locales” (15). A typical illustration of this ethnocentrism is the fact that informal traditional systems, which may not be recognizable in Western states, are usually denied the attention they deserve even where they perform the same functions and generate the same outputs as formal state institutions. This neglect is commonplace because the liberal peacebuilding agenda is imbued with a preconceived set of goals accompanied by the persistent belief that only certain institutions are acceptable means to achieving those ends. Instead of embracing a plurality of local social contracts and promoting agreement on substantive outcomes, there is preoccupation with a single externally-sponsored blueprint containing predetermined institutional benchmarks. Focusing on DFID, Denney (2013) argues that “aid agencies’ liberal-bureaucratic nature predisposes [them] to certain forms of engagement that privilege the state and simultaneously problematize informal actors such as local chiefs” (6).

This bias in both the academic and policy literature is largely underpinned by a limited conceptualization of institutional change in transitional societies. As discussed below, institution building is based almost exclusively on the logic of rational-bureaucratic design, even when dealing with informal institutions in non-western societies.

Legal-rationalism as Modernization Redux

The inclusion of legal-rational institutions in peacebuilding processes can best be described as a modernization rebound since the underlying assumptions correlate with present institutional expectations in both policy and academic discourses, although often implicitly stated. The basic premise of modernization is that societies undergoing the process of development will eventually become modern rational entities in which efficiency based on a scientific logic replaces traditional values and belief systems (Chazan et al. 1999). In sociological terms, this process implies transforming primary groups having ascriptive and diffused roles into consciously organized secondary associations having much more specified universalistic functions (Lipset

1959). Institution-building then becomes imbued with technical procedures geared toward rationalization of governance systems and increased political participation in highly differentiated political structures with rational-legal sources of authority (Valenzuela &

Valenzuela 1978). These changes typically require the broadening of loyalties and identifications from concrete and intermediate groups (family, clans, tribe, and village) to larger and more impersonal groupings (class and nation). In Huntington’s (1968) terms, institutionalization is fundamentally about the attainment of complexity, autonomy, and coherence in a political system. Complexity calls for the hierarchical and functional multiplication of organizational subunits as well as their differentiation into separate types. Autonomy implies that political organizations and procedures must exist independently of other groupings and methods of behavior whereas coherence requires substantial consensus on the functional boundaries and the procedures for resolving disputes which come up within those boundaries (Huntington 1968).

Emphasizing impersonal bureaucratic rules also explains the tendency to adopt a rational-choice institutional design in liberal peacebuilding. Rational-choice institutionalists define institutions as “ex ante agreements about a structure of cooperation that economize on transaction costs, reduce opportunism and other forms of agency slippage and thereby enhance the prospects of gains through cooperation” (Shepsle 1986, 74). Here, institutional maintenance and stability is attributed to an institution’s ability to produce collective goods or solve a collective action problem in a way that benefits the relevant group or community (Greif & Laitin 2004;

Koremenos et al. 2004; North 2005; Tsebelis 2000). The collective benefit may be “efficiency in terms of the mobilization or allocation of resources, social optimality in regard to the maximization of social benefits, the minimization of transactional cost, or the satisfaction of some other functional need” (Knight 1992, 10). Scholars who adopt this approach tend to assume that actors seek to maximize the attainment of a set of goals given by a specific preference function and behave strategically in order to canvass all possible options to generate maximum benefit (Hall & Taylor 1996). Accordingly, institutions only constrain behavior by mediating actors’ calculations of the present and future behaviors of others. They do so by providing information about others’ actions, enforcement mechanisms for agreements, and penalties for defection (Keohane 1984). In institutional design terms, it is anticipated that when “formal institutional change alters the costs and benefits of adhering to particular informal rules, it can serve as an important catalyst for informal institutional change” (Helmke & Levitsky 2004, 732).

Rational-choice institutionalism also brings important insights into an understanding of institutions, particularly their origin, persistence, and change. By seeing institutions as human construction and the direct consequence of human intervention, rational-choice institutionalism

retains a role for human action and agency. Yet, this commitment to intentionality and rationality accounts for a number of weaknesses. One important disadvantage is that rational institutional design becomes powerless in a context where motives and behaviors fall outside the “rational” as narrowly defined. Actors do not always have a fixed set of preferences; their behaviors are not entirely instrumentally based on extensive calculations; and maximization of utility may not be the only goals they pursue. Secondly, the treatment of social institutions as reflective of a world of utility-maximizing individuals cannot encompass two important features of society:

“Institutions reflect the cumulative historical experience of a community and they provide a cohesion that represents the commonality of social experience” (Knight 1992, 18). Finally, rational-choice accounts cannot adequately explain the way institutions tend to distribute power unevenly across social groups. This is an important omission in light of recent neo-institutionalist turn to role of institutions in creating asymmetric power relations that consequently shape access to political and economic resources. Donais (2012) has maintained that “institutions involve the management and distribution of power and authority, and in societies emerging from war the processes of institution generation are highly contested and deeply political” (34). Embedded in the notion of liberal-democratic institutionalism is the goal to restructure power relations, a process which poses enormous potential threat to entrenched political elites.

What is the Rule of Law?

The rule of law has become the sine qua non in contemporary peacebuilding and development processes, serving as the means through which multiple reconstruction challenges are to be

tackled.16 “Development experts prescribe it as the surest shortcut to market-led growth; human rights groups advocate the rule of law as the best defense against human rights abuses; and, in the area of peace and security, the rule of law is considered the surest guarantee against the re- emergence of conflicts” (Rajagopal 2008, 1348). As the concept regained currency in the early

1990s following a brief hiatus during the Cold War, Carothers (1998) observes that “one cannot get through a foreign policy debate these days without someone proposing the rule of law as solutions to the world’s troubles” (95). For Peterson (2010), “the rule of law consensus emerged almost automatically and without much questioning or comments, reflecting the newfound enthusiasm for liberal democracy and market economics as embodied in the liberal peacebuilding agenda” (18). The rule of law is often imbued with the following attributes which, some argue, are indispensable to validating and maintaining the social contract.

1. Provides stable social order necessary for democracy. According to the United States

Agency for International Development (USAID) Guide to Rule of Law Country Analysis,

the rule of law “ensures the protection of those rights critical to maintaining an orderly

and productive society, creating the conditions that enable a democratic society to

develop and thrive” (USAID 2008, 6).

2. Protects property rights adequately and consistently, “including to facilitate the conduct

of essential economic activity, or to resolve in a fair and timely manner disputes that can

lead to social unrest and black or grey market activity” (7).

16 The rule of law can also be described “an ideal end-state to work towards, one that features a system of government that is transparent and accountable and embodies other checks and balances” (United Nations Office on Drugs and Crime (UNODC) 2011, 2). But this research focuses more on rule of law as the formula through which multiple post-conflict recovery goals are expected to be realized.

3. Guarantees the expression of the collective will by requiring people to respect the

organization and power of their governments while ensuring the protection of their basic

human and civil rights. “Without such restrictions, force and violence rather than

consensus and competition may determine who holds political power, and those who

pursue legitimate political activities may face intimidation or worse” (USAID 2008, 6).

These key functions of the rule of law are such that citizens’ willingness to obey laws emanates not solely from the threat of sanctions but also from the recognition that those laws were derived from an authoritative process subject to social input (USAID 2008).

Perhaps this rule of law consensus is related as much to the term’s conceptual breadth as to its purported practical purposes in promoting economic development, democratization, and access to justice. There are numerous definitions of the rule of law based on different legal traditions, but in order to highlight the essential elements without sacrificing analytical utility, the globally recognized definition of the UN is adopted. The organization defines the rule of law as:

A principle of governance in which all persons, institutions, and entities are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before law, fairness in the application of law, separation of powers, legal certainty, avoidance of arbitrariness and procedural and legal transparency (UN Security Council 2004).

This definition is comprehensive enough to include both the procedural and substantive dimensions of the rule of law. But before dissecting the ways in which the concept is operationalized within the context of contemporary post-conflict peacebuilding, it is important to trace the conceptual origin and evolution of this orthodoxy. In its current parlance, the rule of law is a derivative from the works of A.V. Dicey (1815), an English political thinker who

formulated a tripartite understanding of the concept to include supremacy of regular law, equality before such law, and constitutional protection of fundamental civil liberties.17 Dicey used this formulation to contrast a political system governed by the rule of law with those based on the exercise of personal, arbitrary and discretionary powers. Where rule of law prevails, “no one suffers punishment for any conduct not forbidden by law, everyman’s legal rights and liabilities are determined by the ordinary courts of the realm, and individual rights become the basis on which a constitution is founded” (Dicey 1815, xxxxii).

It is worth noting that Dicey admitted that the rule of law contained in his treatise was a distinctive characteristic of the English constitution, he was lamenting an emerging tendency among certain classes of Englishmen to manifest “distrust of the courts of law” and to be more inclined to use “lawless methods” for the attainment of social and political ends. Dicey was wary that the use of extrajudicial means to settle disputes was beginning to resemble the droit administratif of France, a system which contained ideas hardly reconcilable with the rule of law as understood in England. However, this tripartite descriptive definition—particularly its emphasis on the centrality of law and law courts—has formed the basis of what is now known as the formalistic or minimalist understanding of the rule of law. Minimalists place premium on having laws that are created through some sort of democratic processes and predate their application. They also insist on promulgating laws that are “universal in form, consistently applied, and sufficiently well-known so that citizens can plan their lives around them”

(Stromseth & Brooks 2006, 70). The call for some sort of predictability in exercise of state

17 Some accounts of the rule of law suggest that the idea has a longer intellectual pedigree going as far back as the writings of Plato and Aristotle. But Dicey is often seen as the leading proponent of the fundamental rule of law principles that underpin the operation of modern liberal democratic systems.

authority rests on the assumption that “variable and unclear legal rules may stand in the way of economic freedom and development” (Ndulo 2011, 90). This formulation may seem vacuous but its proponents argue that it is precisely this emptiness that enables this conception of the rule of law to transcend polarizing value-laden debates. Trebilcock and Daniels (2008) contend that “a procedural approach to the rule of law stands a good chance of yielding institutions that are both strong and worthy of popular legitimacy, and conducive to the broader goals of development”

(25). They identify four values which together guarantee due process or natural justice:

1. Transparency: laws, decrees, ordinances, regulations, once made are publicly promulgated and widely accessible to the citizenry at large

2. Predictability: once enacted and adopted, laws will be enforced in a predictable and consistent way, relatively free from the exercise of arbitrary discretion and not influenced by factors extraneous to the ostensible objective of the law

3. Stability: laws that are intended or likely to induce major reliance interest are not subject to frequent convulsive and sudden changes

4. Enforceability: laws adopted are effectively enforced by government and / or through the courts or other agencies of the state

Critics of legal-formalism contend that rule of law devoid of moral and ethical content is meaningless as it can coexist comfortably with appalling human rights abuses and injustice. This call for broader conceptualization that includes substantive elements and normative questions of what the rule of law ought to be has culminated in a maximalist or thick approach. Maximalists do not “necessarily reject the notion that the rule of law has important structural and formal dimensions,” but insist “true rule of law requires particular substantive commitment” (Stromseth et al. 2003). For them, limiting rule of law to technical procedural requirements compelling compliance with legal rules is synonymous to reducing the concept to rule by law which permits any action as long as it occurs within the confines of law. Without substantive moral content, law can become a powerful legitimating tool to perpetuate injustice against certain groups and

reinforce unequal relationship of power and wealth (Pimentel 2010; Sriram et al. 2011). Adding substantive elements is a safeguard against such abuses, maximalists assert. Depending on what elements are added for the content to be substantive enough, you can have a maximalist spectrum ranging from thinner maximalist stressing abstract concepts such as fairness and equality to thicker versions insisting on normative commitment to liberal democratic values, individual human rights, social justice, human dignity, etc.

While distinguishing between minimalist and maximalist conceptions of the rule of law serves as a useful heuristic device, this distinction should not be overstated. Operationalizing rule of law in the field of peacebuilding often involves combining formal and substantive elements in ways that transcend definitional questions that preoccupy political philosophers and legal scholars. Sriram et al. (2011) note that the 2004 UN’s definition of the rule of law comprises two elements: (1) the procedural element which requires publicity of law, equal application, and independent adjudication; and (2) the substantive component which stipulates content to the formal requirements of international human rights norms and standards of fairness. Describing international law as a “thickening agent,” Kristjansdottir et al. (2012) also maintain that “effort to strengthening the rule of law in war-torn societies is an attempt to replace the thin conception of the rule of law that served outgoing authorities with a thicker interpretation that is protective of individual rights and separation of power” (4).

Overstating the distinction between formal and substantive accounts of the rule of law is also unhelpful because programmers generally assume that substance will flow from form—that is,

“normative commitment to substantive values will naturally flow from structurally independent

courts and from newly drafted legislations that highlight those values” (Stromseth et al. 2006,

73). It is hoped that capacitating new institutions and modernizing legal codes to regulate political and economic relations will eventually translate into substantive cultural commitment to ethical issues relating to equality and rights. This conflation of form and substance has given rise to a standard menu of reforming institutions, rewriting laws, upgrading the legal profession, and increasing legal access with the expectation that doing so would engineer social change in a cookie-cutter way. Moreover, (re)building the rule of law, some have argued, presupposes “a set of normative commitment to the project of law itself, a commitment to the orderly and nonviolent resolution of dispute and willingness to be bound by an outcome of legal rules and processes” (Stromseth et al. 2006, 75). Barnhizer and Barnhizer (2009) contend that there is no non-substantive version of the rule of law because “the formalism of its central processes rests on a foundation of implicitly shared assumptions about the proper order and purpose of society”

(34). In other words, the formal principles are themselves based on a particular set of normative beliefs of how society should be regulated.

(Re-) building the Rule of Law in War-torn Societies

As the discussion suggests, the rule of law as a principle of governance has become institutionalized as a global norm, shaping international relations and post-conflict statebuilding.

For the UN High Commissioner for Human Rights (UNHCHR 2006), “spreading the rule of law and deepening respect for human rights are now seen not only as the right thing to do but also as central to durable international peace and security in the post-Cold War world” (4). Beaulac

(2012) identifies two levels of contemporary rule of law promotion; how rule of law values can be externalized onto and applied within the international legal order and how such values can be

transplanted into domestic settings. Institutionalization at the international level, which he refers to as “rule of law internationalized,” overlaps with the first of the three UN rule of law baskets that seeks to promote rule of law at the international level through instruments such as the UN

Charter, multilateral treaties, international dispute resolution mechanisms, international criminal tribunals, and training and education in international law.18 Conversely, internationalization of the rule of law is about “how the international plane may be used to export rule of law from

[certain] domestic spheres and promote its values within other domestic jurisdictions” (Beaulac

2012, 20). This level of institutionalization is contained in the UN’s other two rule of law baskets: rule of law in the context of conflict and post-conflict situations and rule of law in the context of long-term development. In both baskets rule of law elements originate from specific domestic legal orders and transit through the international legal sphere to their final destination in developing and transitional societies.

Rule of law promotion in the post-conflict and development baskets applies concurrently to war- torn societies and is further divided into two components: transitional justice and strengthening national justice systems and institutions. The activities under transitional justice include those aimed at retributive justice such as war crimes trials and lustration and those intended to foster restorative justice including truth and reconciliation processes, reparations, and national human rights institutions. Beyond the transitional justice phase, activities to strengthen national justice focus on the justice sector comprising two interrelated aspects as well:

18 Report of the UN Secretary-General, Uniting our Strengths: Enhancing United Nations Support for the Rule of Law, December 2006.

Legal Reform

The first aspect of the national justice sector is the legal framework of laws and rules that govern public life including the constitution, legal codes, and implementing regulations (policies and practices). Legal frameworks or applicable laws “establish and empower justice sector institutions by defining their institutional roles and regulating their behavior” (USAID 2008, 12).

Constitutions, at the top of a hierarchy of laws, contain rule of law guarantees, but codes and regulations provide standard operating procedures and specific mechanisms for practical implementation. In war-torn societies, the pre-existing legal framework may be the product of colonial and post-colonial authoritarian regimes, and therefore comprise informal and outmoded rules that contravene international human rights and criminal law standards. Also, because successive regimes may have introduced new laws without replacing old ones, there may be layers of overlapping and conflicting laws from different ruling regimes (UNODC 2011).

Finally, during conflict, it is possible that rebel groups would have developed their own legal systems, complete with laws that are still applicable. In the same way, military and other dictatorial regimes may have abrogated legislative processes in favor of executive decrees, orders, or fiats.

Law reform in post-conflict states aims to bring these laws and situations into compliance with rule of law principles and international human rights norms and standards.19 “Where laws in

19 According to the United Nations Office on Drugs and Crime (UNODC), the following laws and regulations need to be ascertained when engaging in criminal justice reform: laws on courts and the selection, appointment, and removal of judges; laws on prosecutors and the selection, appointment, and removal of prosecutors; police laws; laws relating to legal practice in the country, including legal aid laws and laws on bar associations; relevant codes of ethics for judges, prosecutors, lawyers, and police; laws on any law reform agencies or bodies; laws on legal education; laws on non-State justice systems and the relationship between these systems and the formal State system; laws on private security providers; laws

post-conflict states are outdated, reform efforts should ensure that existing laws are modernized, that obsolete or anomalous provisions are repealed, and that new laws meet changing social needs. Law reform efforts should also aim to dispel legal chaos and to simplify the legal framework” (UNODC 2011, 61). Normally, the reform process begins with a review of applicable international and domestic laws to assess which violations of international human rights norms and criminal standards should be considered as well as whether the laws are laconic or ambiguous. Specifically, an assessment of the pre-existing legal framework is crucial for the following purposes. First, it identifies those provisions or omissions that allow for the exercise of discretionary power including excessive executive authority and arbitrary fusion of political and judicial powers. Secondly, this assessment takes into consideration security and social problems that have emanated from the conflict situation or post-conflict recovery to be addressed in the new laws (e.g., crime and gender-based violence). Lastly, the review provides an opportunity to locate and remove legal provisions that are discriminatory against vulnerable and minority groups particularly women, aliens, ethnic minorities, children, etc.20

In terms of promoting good governance, the drafting of a new constitution or new laws is with the objective of establishing constitutionalism which connotes “a government defined, regulated, and limited by a constitution” (Ndulo 2011, 91). A corollary to constitutional democracy is the notion of separation of powers as the basis for checks and balances in the exercise of state power.

Legal drafters aim for a new arrangement in which “the different institutions of government—the

on immunities of State figures and public servants; laws on associations (including NGOs); and laws establishing special courts or transitional justice mechanisms (UNODC, Criminal Justice Reform in Post- conflict States: A Guide for Practitioners, developed jointly with the United States Institute of Peace, 2011). 20 UNSC, Report of the UN Secretary-General, Strengthening and Coordinating United Nations Rule of Law Activities, July 2013.

legislature, judiciary, and executive—while operating independently of one another, act to check each other’s operations and balances each other’s powers” (91). It may also require provisions that reinforce the supremacy of the constitution such that any law or conduct inconsistent with it is considered invalid. In order to protect human rights and increase access to justice, the new or reformed constitution must guarantee the following bill of rights without qualification:

 Right to equality before the law, human dignity, and inviolability

 Prohibition of all forms of degrading treatment and exploitation especially slavery, torture, and cruel punishment

 Right to fair hearing, the elements of which include right to be heard, to appeal, to a presumption of innocence, to defence by counsel of one’s choice, and to trial within a reasonable time by an impartial court of tribunal (Ndulo 2011, 94).

However, due to the unavailability of national legal drafters or failure to fully consult those available, “the drafting of new laws in post-conflict societies have been dominated by foreign legal experts many of whom are unfamiliar with the laws and legal traditions of the post-conflict states” in question (62). Typically, these international experts resort to drafting new laws that include aspects of their own domestic laws, often leading to the transplant of alien legal concepts into the domestic law of war-torn societies (UNODC 2011). This overreliance on foreign legal experts and the inappropriate transplantation of foreign laws has had profound adverse effects on the relevance of new laws in local post-conflict settings.

Justice Sector Reform

In addition to the first aspect of strengthening the national justice system, the second dimension focuses on the national justice institutions and actors themselves. Justice sector institutions are numerous and vary according to national legal contexts but generally speaking rule of law

programming have prioritized the judiciary, police, and prison services.21 One of the major challenges confronting justice sector reform is that too often these three institutions operate as separate and even quarrelling fiefdoms. In most cases, “little cooperation existed and they often fought over who would control lucrative sources of profit such as selling jobs, imposing taxes for services and various criminal racketeering enterprises involving smuggling, trafficking in women, children, narcotics, diamonds, coltan, and similar resources” (UNHCHR 2006, 31).

Building bridges and cooperation among them means efforts to reform all three must proceed simultaneously. The judiciary may be largely dysfunctional due to weak operational and administrative capacity; staff members may have either left the country or completely discredited by corruption and complicity in previous regimes. Where courts are still operational, they may be geographically and culturally remote from communities, their procedures clogged up by substantial case backlogs, and too expensive to be afforded by the majority population. The police may aggravate these problems by being principal violators instead of protectors of human rights, often acting according to orders from politicians above. The prisons, on their part, “may be overcrowded, unhealthy places where brutality has reigned and people have languished for years without charge or trial” (5). Regaining public confidence in these institutions and the justice sector as a whole, for the UN and its related partners, requires a substantial and comprehensive institutional strengthening targeting the following areas of capacity building, vetting, and formal oversight:

21 The UN Rule of law Tools for Post-conflict States identifies 42 justice sector institutions. Other studies have categorize justice sector institutions and actors into: (i) criminal justice delivery institutions including the police, courts, prosecution services, detention and prisons, criminal defence and lawyers; (ii) criminal justice management comprising the ministry of justice, ministry of the interior (also known as the ministry of home affairs); (iii) oversight bodies including executive, legislative, and civil society; (iv) lawmaking and law reform bodies such as law reform commissions and judicial reform commissions; (v) legal education, police, and corrections training institutions; (vi) customary and non-state justice systems; and (vii) private NGO and civil society organizations (see UNODC, Criminal Justice Reform in Post-conflict States: A Guide for Practitioners, 2011; USAID Guide to Rule of Law Country Analysis: The Rule of Law Strategic Framework, 2008).

Capacity building. Capacity development in the justice sector means equipping institutions with the human and material resources necessary to perform their functions as well as the administrative and management capacity to deploy these resources effectively. Usually capacity building begins with quick impact projects to support the rebuilding of court infrastructure and law enforcement facilities that have been destroyed by war or fallen into disrepair. Logistical support is normally accompanied by professional training and educational assistance. Training assistance is intended to impart skills, knowledge, and tools so that local institutions can provide efficient and effective services that are responsive to the need of vulnerable populations in the post-conflict context.22 The UN has developed a large supply of training manuals, courses and modules, guidance materials, judicial doctrines to facilitate rule of law engagement in field missions.23 Other capacity development initiatives include financial and technical support for the establishment of judicial training programs to train law enforcement agencies on command responsibility, investigations and accountability, and how to deal with gender-based violence and juvenile justice issues. The European Union, Organization for Security and Cooperation in

22 Paying attention to the specific needs of vulnerable and marginalised groups means operating according to numerous international treaties and guidelines including: the United Nations International Covenant on Civil and Political Rights and its two additional protocols; United Nations International Convention on the Elimination of All Forms of Racial Discrimination; United Nations Convention on the Elimination of All Forms of Discrimination against Women; United Nations Convention on the Rights of the Child; Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography; United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power; United Nations Declaration on the Elimination of Violence against Women; United Nations Declaration of Human Rights of Individuals Who Are Not Nationals of the Country in Which They Live; and the United Nations Declaration on the Rights of the Child (UNODC, 2011). 23 For example, see Guidance Note of the Secretary-General on UN Approach to Rule of Law Assistance, April 2008; Guidance Note of the Secretary-General on United Nations Assistance to Constitution-making Processes, June 2009; DPKO Policy Directive on Prison Support in UN Peacekeeping Operations, December 2005; DPKO Legal and Judicial Rule of Law Work in Multi-dimensional Peacekeeping Operations: Lessons Learned Study, March 2006; DPKO Primer for Justice Components in Multidimensional Peace Operations: Strengthening the Rule of Law, December 2006; DPKO Supporting National Prison Systems: Lessons Learned and Best Practices for Peacekeeping Operations, December 2005; and UNDP Global Program on Strengthening the Rule of Law in Conflict and Post- conflict Situations: Building Peace through Security and Justice, 2010.

Europe, and the African Union have also been active in raising awareness on human rights standards among law enforcement agencies, civil society, and local communities.

Technical assistance in capacity building consists of support to court case management, information technology systems, and operations in order to ensure efficient administration of justice. To ensure that the correctional services are able to implement judicial decisions in conformity with international human rights standards, attention is devoted to the regulatory frameworks, refurbishment, and rehabilitation of prisons.24 Attempts to coordinate efforts and mobilize resources within the UN led to the creation of the Rule of Law Coordination and

Resource Group (ROLCRG) which is made up of nine UN entities and supervised by the Deputy

Secretary-General.25 At the bilateral level, donors including the UK DFID and USAID have augmented the judicial reform activities of UN peacekeeping operations by raising and dispersing additional resources necessary to capacitate national judicial systems. One prominent area of bilateral donor support is enhancing the capacity of local universities and law schools to educate future judges and lawyers. Funding and educational assistance is also extended to legal clinics and paralegal aid schemes expected to provide low or no cost legal services to those who cannot afford to hire a lawyer.

Vetting, recruitment, and promotion. This aspect of institutional strengthening aims at gradually replacing personnel implicated in the outgoing regime and corruption with a new breed of local

24 Report of the UN Secretary-General, Strengthening and Coordinating United Nations Rule of Law Activities, July 2013. 25 The UN agencies comprising ROLCRG are the UNDP, Department for Peacekeeping Operations, Department for Political Affairs, Office of the High Commissioner for Human Rights, Office of Legal Affairs, United Nations High Commission for Refugees, UNICEF, United Nations Office on Drugs and Crime, and UN Women.

actors. “Vetting currently serving judicial officials to determine their suitability for continuing office is seen as a natural link between transitional justice and long-term institutional reform”

(UNHCHR 2006, 34). It is a process intended to ensure that those officials are held accountability for past actions and at the same time deny them an opportunity to repeat such misconduct. Often undertaken with the supervision of civilian peacekeepers, vetting procedures

“scrutinize the qualification and past performances of judicial personnel to ensure they have the requisite professional integrity and have not been complicit in past human rights violations or crimes against humanity” (UNHCHR, 6). After or while vetting is being carried out, a widespread national recruitment drive is usually launched to bring in new professionals into the justice system. The new recruitment system is to introduce a “new ethos of service in which recruitment and promotion should be based on objective criteria not nepotism or political favoritism” (UNODC 2011, 79). New measures are intended not only to promote fair and transparent criteria, but also to reflect ethnic, racial, and gender diversity. In the immediate aftermath of conflict, ensuring that previously marginalized groups are proportionally represented may require a recruitment and selection process that prioritize certain intake, and this explains why UN peacekeeping missions devote special attention to increasing the number of women recruited into law enforcement agencies.

For the judiciary, procedures for appointment and promotion are intended to achieve institutional and financial autonomy. Therefore, conditions of services are designed to promote “an appropriate appointment procedure, security of tenure, which the executive cannot adversely affect” (Ndulo 2011, 98). To avoid (or minimize) the temptation of dispensing justice to the highest bidder or most influential, judges are to be adequately remunerated—although the

introduction of international remuneration standards by donor-supported projects often brings heavy burden on national governments to maintain such pay standards long-term. In the interest of ensuring socio-ethnic diversity, judicial appointments may be influenced by the need to be politically correct in post-conflict restructuring. Yet, it is crucial that candidates are competent persons with a track record of professional conduct and integrity germane for building public trust in the judiciary. Typically, donor assistance to bolster the morale of judicial personnel has concentrated on judges; but, there is growing call now to consider magistrates located at the frontline of administering justice at the subnational level (UNODC 2011).

Oversight and discipline. The aim of institutional strengthening is to ensure that justice sector institutions operate transparently with integrity and are held accountable to rules of standards of conduct.26 But while capacity development may be geared toward effective performance, internal and external accountability mechanisms are necessary to ensure that enforcement agencies are disciplined and secure public trust. With regard the police and correctional services, internal measures include the development of professional codes of ethics which specify what acceptable and unacceptable conduct is. Also, put in place is an incentive system that rewards ethical behavior and punishes corruption and abusive practices. “Internal disciplinary mechanisms, if fair and objective,” are expected “to encourage good behavior since they directly influence an officer’s career” (UNHCHR 2006, 33). Programmers anticipate that “ performance assessment would go into personnel files which then affect promotions, transfers, raises, assignments, and opportunities for further training and skills enhancement” (UNODC 2011, 78). Such information also becomes useful for generating policy changes and recommendations as well as adaptation in

26 DPKO and OHCHR Rule of Law Indicators’ Implementation Guide and Project Tools, 2011, 3.

training and incentive structure. A direct corollary to such an internal mechanism is that the public needs to know what the complaint procedures are and have confidence in them as transparent forum of redress (UNHCHR 2006; UNODC 2011).

Equally, codes of judicial ethics are established to define the parameters of public expectations of judicial conduct. Codes of ethics set service standards for judicial personnel and may require them to disclose their assets as check against potential corruption. Strengthening independent oversight of the judiciary also means setting up formal accountability mechanisms such as judicial service commissions as well as judicial reviews and inspections through the courts

(UNODC 2011). Relevant independent bodies may include commissions of inquiry, human rights commissions or ombudspersons who investigate complaints relating to the miscarriage of justice by members of the public. If independent, civil society and the mass media can play a role in monitoring and promoting public deliberation on judicial accountability. By assisting people to navigate the justice system, paralegal and human rights NGOs are seen as potential watchdogs to expose corrupt practices. With these oversight mechanisms operational, coupled with the enhanced institutional capacity of justice sector institutions, rule of law programming is anticipated to create the conducive environment for security, development, and above all increased access to justice in post-conflict zones. Such expectation is in line with the conventional view that war-torn societies “have failed due to a rule of law deficit, and therefore need functional legal systems predicated on the restoration (or de novo construction) of legal systems” (Marshall 2014, 1). Unsurprising, peacebuilding processes such as transitional justice have been linked to the long-term goal of rebuilding the rule of law in war-torn societies.

Transitional Justice

Transitional justice (TJ) focuses on a set of judicial and non-judicial mechanisms designed to redress the legacies of massive human rights abuses committed in civil wars or by repressive authoritarian regimes (Hayner 2011; ICTJ 2015; Tietel 2000). Beyond their official mandates of holding human rights violators accountable, TJ mechanisms (such as truth and reconciliation commissions [TRCs] and war-crimes tribunals) are expected to promote a rule of law culture in transitional societies (Sriram 2011). As Mendez (1997) argues, “the pursuit of retrospective justice is deemed an urgent task in transitional societies as it highlights the fundamental character of the new order based on the rule of law” (1). Thus, refraining from holding violators accountable is not only morally wrong because it fails to recognize the worth and dignity of victims. It is also seen as politically incorrect because “it sets the new political order on a weak foundation of privilege and denial of the rule of law” (Mendez 1997, 1). Such an approach places a premium on enhancing the integrity, accountability and legitimacy of an institution through transforming the institution’s role in society and its relationship with the population. In other words, in this rule of law strengthening role, TJ mechanisms are expected to undertake a kind of positive social engineering that stimulates respect for the rule of law among the local population.

As far back as 2004, the UN Secretary-Generals have reiterated the need to design an exit strategy for international and hybrid tribunals in order to maximize their intended legacy in the countries concerned. The UNHCHR defines this legacy as “the lasting impact on bolstering the rule of law in a particular society, by conducting effective trials to contribute to ending impunity while also strengthening domestic judicial capacity” (UNHCHR 2008, 4). In other words, legacy is what war-crime tribunals can bequeath to post-conflict societies beyond just convictions,

acquittals, and bricks and mortar (O’Neil 2003). And a highly acclaimed strategy for implementing a legacy-sensitive TJ program in post-conflict states is the “demonstration effect.”

That is, TJ mechanisms are expected to contribute to a “culture shift and demands for change or increased accountability through increased rights awareness” (UNHCHR 2008, 17).

Demonstrating rule of law principles, such as supremacy of law, legal certainty, legal equality, separation of powers, and their independence from political considerations, trials, in particular, make a crucial contribution in this respect (Sannerholm 2012). It is for this reason that trials must

“aspire to the highest standards of independence, impartiality, and application of norms of due process and international human rights” (UNHCHR 2008, 17).

However, most literature on demonstration effects are at best ambivalent about a lasting legacy.

Externally-driven justice processes are often considered ill-disposed to improve the capacity of the local population to establish its own justice system (Arzt 2006; Dickinson 2003). Mutua

(1997) contends that “ad hoc tribunals are suspended from political reality and removed from both the individual and national psyches of victims and victors of conflicts” (168). Moreover, obsession with international rule of law promotion leaves little room for consideration of non- state traditional justice norms which are only mentioned in TJ processes as an afterthought

(Quinn 2014, 2015; Shaw and Waldorf 2010). Kelsall (2005) has contended that “ritualistic practices that involve the [use of supernatural sanctions] would doubtless have encountered resistance from certain TRC staff, who would have regarded them as irrational, if not abhorrent to the spirit of human rights” (385). And Alie (2008) links this inclination to eschew local rituals of swearing and cursing to the fact that TRCs are based on a liberal peacebuilding framework that discounts those practices as backward and primitive. This condescending portrayal is often

imbued with the expectation that marginalization of traditional justice systems would eventually lead to withering away of such systems as TJ mechanisms stimulate a rule of law culture in war- torn societies.

This displacement expectation also explains why legal pluralism is less of a priority in the liberal peacebuilding agenda.27 Grenfell (2013) observes that “international organizations such as the

UN and World Bank have given little consideration to legal pluralism, preferring to focus their rule of law efforts on formal state institutions and state legal systems” (5). Reluctance to embrace legal pluralism is reminiscence of colonial “civilizing” projects that subjected customary laws to so-called repugnancy clauses of natural justice, good conscience, and civilization. The current arguments against upholding a pluralistic legal framework in war-torn societies are usually formulated as follow. Within human rights corpus it is argued that legal pluralism promotes diverse standards of justice which reinforce social and economic inequalities, with significant impact on vulnerable groups such as women (Harper 2011). Also, concerns are raised about the risk of cultural relativism on issues related to justice and human rights. As Grenfell argues, the usual charge is that “legal pluralism says little about the nature of justice except that it flows from multiple sources and it provides no criteria by which to assess which source of law makes justice available to the most vulnerable sections of society” (66). But as in previous epochs of rule of law promotion, legal pluralism has continued to pose a serious challenge to this rule of law orthodoxy in war-torn societies, particularly the notion that dispute adjudication must be a state prerogative.

27 The UN defines legal pluralism as the term used to reflect the complexities involved in contexts where a diverse range of formal and informal legal systems and practices as used to deliver justice and resolve disputes (UN Rule of Law website, accessed on 11 January 2015).

In general, as the “difficulties of establishing structural and economic conditions for sustainable peace come to the fore,” both the conceptual framework and strategy adopted by the UN and other interveners have also been heavily criticised (Cavalcante 2011, 4). Some authors have contended that liberal peace—democratization, economic liberalization, and human rights—can produce adverse unintended consequences. In particular, some contend that undue emphasis on liberal democracy and market economy in fragile societies may undercut achievement of long- term peacebuilding goals that could have been well-intentioned (Newman et al. 2009). Others have argued that a liberal economic agenda that stresses reduction in public expenditure, privatization, and fiscal constraints on fragile states may aggravate inequalities and social grievances (Chua 2004). Taking the empirical record into account, many scholars have drawn attention to the sociocultural and political challenges in transplanting Western-oriented rule of law norms into weak institutional contexts in the global South (Barnhizer & Barnhizer 2009;

Haggard & Tiede 2014: Mani 1998; Pimentel 2010).

Nonetheless, these criticisms are interested in how to enhance the efficacy of the liberal peace model rather than challenging what Donias (2012) calls the “normative scaffolding” upon which consensus is based. Without questioning the model itself or its ontological assumptions, the objective of this problem-solving critique is better integration of, and efficacy in, the constitutive components of liberal peace-building (Richmond & Franks 2009). Paris (2011), for example, posits an institutionalization before liberalization framework which prioritizes the building of state institutions that in turn provide the parameters needed for peaceful political and economic competition. Yet as Sriram et al. (2011) caution, “there remains the danger that such emphasis upon institutionalization entails the same imposition of international preferences and is likely to

favor official structures and elites over civil society” (2). This danger is evident particularly in the literature that shapes peacebuilding programs sponsored by multi- and bilateral donor actors operating in the global south.

Peacebuilding and Rule of Law in Africa

At the time of this research, 9 out of 16 UN peacekeeping missions were in Africa. Additionally, the first 5 countries on the UN Peacebuilding Commission’s agenda and first 9 situations before the International Criminal Court were from the continent. At the surface, this is an empirical question, reflecting the sheer number of countries in Africa that are in or emerging from violent conflicts compared to other regions of the world. But beyond the numbers, debates regarding the normative assumptions and conceptual understanding of the problem have been polemic, often pitting Africanists who see an African crisis that is exceptional to the continent against those leery of explanations that tend to internalize and vulgarize the problem. In terms of diagnosing the continent’s development and peacebuilding conundrum, the debate is usually centered on this broad conceptual framework—state failure or state collapse—which Wai (2012) maintains has

“held a totalitarian grip on the interpretation of the continent’s postcolonial sociopolitical realities” (28).

State Failure or Collapse

As a master concept, the term state collapse is often employed either to depict the state-building project in Africa as an abysmal failure or to portray state institutions as chronically weak and vulnerable to societal capture (or both). From this perspective, it is postulated that most post- colonial African states have reneged in their roles as intangible symbols of national identity and

authoritative institutions for the allocation of public values (Fawole & Ukeje 2005; Jackson &

Rosberg 1982). Regarding symbols of sovereign authority, many states are identified with their inability to guarantee security for a populated territory and failure to command and conduct public affairs (Villalon & Huxtable 1998). Zartman (1995) argues that “the state no longer receives supports from, nor exercises control over its people, and it is no longer even the target of demands because its people know it is incapable of providing supplies” (5). Using some of the widely accepted indicators of statehood—political stability, government effectiveness, and regulatory quality—Bratton (2004) confirms the conventional view that “by global standards,

African countries possess weak states and suffer sub-par governance” (199). On his part,

Englebert (2000) argues that Africa has relatively failed in the “principles upon which the right to rule is based (vertical legitimacy)” and “definition of the community over which to rule

(horizontal legitimacy)” (11). Others characterize the African state as “an empty shell” (Chabal

& Daloz 1999), “a lame Leviathan” (Callaghy 1987), “juridical but not empirical” (Jackson &

Rosberg 1982), “omnipresent but ... hardly omnipotent” (Chazan 1988), “excessively authoritarian in disguise of being inadequately authoritative” (Mazrui 1983), and “a shadow state” at the disposal of local barons and warlords (Reno 1997, 2001).

Some scholars have taken great exception to the state failure thesis questioning its analytical utility, Eurocentric assumptions, and normative claims. Tull (2003) contends that the term state collapse is misleading as it presupposes that once-integrated entities are now falling apart when in actual fact states in Africa have never approached a Weberian ideal nor resembled European approximations to that intellectual construct. Speaking of state failure within the context of 50 years of independence in Africa obscures, for Wai (2012), understanding of statehood as an

“unfinished political project” with questions about “citizenship and political membership” arising from the attempt of colonial masters to “hastily and arbitrarily force multiethnic societies into states that were intended to serve imperial interests” (34). Drawing parallels between the collective violence in new states in Africa and violent state formation in Europe, Cohen et al.

(1981) equally warn against criminalizing contemporary conflicts as indicative of political decay.

These authors argue that by interpreting increase in collective violence as solely indicative of movement toward political decay instead of order, the conventional wisdom seriously misrepresents the historical process of state-making which often involves violent processes of accumulating power resources necessary for effective territorial domination.

The assumed link between state failure and political instability has also come under scrutiny, with many citing the absence of cataclysmic eruptions anticipated where the state political and administrative infrastructure has crumbled. This critique calls into question the assumption that modes of political order would be fundamentally different or untenable in territories that lack formal bureaucratic institutions with the capacity maintaining monopoly over the use of force.

Examining warlord or non-state politics in North Kivu following the territorial break-up of the central state of the DR Congo, Tull (2003) reveals significant continuities between the strategies of ruling rebel strongmen and the central government of Mobutu Sese Seko. Far from indicating the end of politics, these strategies largely mimic the central government’s political setup and thus contribute to the reproduction of the postcolonial state despite institutional erosion. The same observation holds for the situation in Somalia which continues to “enjoy international recognition as a state even though it is incapable of exercising even minimal control over most of its national territory,” whereas Somaliland is denied such recognition even though it has

managed to develop structures of basic stability and order (Clapham 2012, 305). In sharp contrast of what the international community expects to be the architecture of political order, the unrecognized state of Somaliland is a replacement of formal colonial institutional structures by an informal governing coalition of political and business leaders that emerged out of complex processes of inter-clan bargaining and negotiations (Clapham 2012; Englebert & Tull 2008).

Given these analytical contradictions and empirical pitfalls, others have posited that the state- failure conceptual framework is not merely a reflection of the African reality but also a social construction used to legitimize external interventions as well as the imposition of legal-rational institutions as an extension of the liberal peace paradigm (Wai 2012). An illustration of this argument is the linking of state failure in Africa to security in the global north as a way of merging security and development discourses which in turn become the basis for invoking interventionist doctrines such as the Responsibility to Protect (R2P). Duffield (2009) has argued that by securitizing the existence of lawless or ungoverned spaces in the global south, the international community articulates the need “to achieve greater coherence between aid and politics, in particular to realign system-wide operations with a [liberal] peace formula internationally imposed” (118). Duffield’s main contention is that the security and development nexus is not new; it is a “risk-based security mentality” that has long underpinned a liberal impulse to intervene and govern the global south since the colonial era.

More crucially, casting the African problem squarely within the state-failure narrative presents the post-conflict context as a public authority vacuum, thereby justifying the implantation of

Western liberal institutions as essential to both state and peacebuilding processes. Corollary to

this rationalization are two interrelated but implicit assumptions. The first is institutional engineering which assumes that Western-style institutions can be successfully transferred to

Africa, provided the right experts are made available (Englebert & Tull 2008). In addition to questioning the unproven link between liberal mode of governance and peace, many scholars have documented the problems associated with hegemonic rule of law programing including cultural imperialism (Pimentel 2010), insensitivity to political contexts (Peterson 2010), prioritization of legality over conflict resolution (Mani 1998), and reluctance to adopt a more inclusive approach that takes into consideration localized rules of law (Denney 2014; Peterson

2010). The second, and more pertinent for this dissertation, is a misconception about the nature of non-state informal institutions and their ability to survive civil conflicts and postwar state reconstruction. Assuming that these institutions have been entirely contaminated by patrimonial politics, discredited by ensuing conflicts, or are simply by-products of civil war, it was expected that their roles would become irrelevant once the modern state system has been re-established.

Where informal institutions have proven to be resilient, the common approach is to engage them in the same way as state institutions and restructure them to conform to international standards.

Subjecting such institutions to the same statist top-down institutional reforms is evident in the areas of decentralization and local governance reform but more specifically in rule of law engagement with customary justice systems.

In what she describes as a gap between rhetorical recognition of the role of customary justice systems and practical rule of law engagement with them, Isser (2011) identifies three fundamental biases that persist. First, there is still “the widely held tendency to see justice reform as a technical exercise of drafting laws and building institutions, the traditional preserve of legal

professionals” (2). She argues that rule of law movement is slow to realize that deficiencies in customary justice systems are not merely a problem of bad laws but often a reflection of cultural attitudes, power imbalances, and power relations. This slow realisation, she maintains, is indicative of a systemic problem because lawyers who engage customary justice systems tend to have been educated exclusively in formal English law, which makes them ill-suited for this task.

Apart from lacking the background and skills to grapple with contextual complexities of customary institutions, legal practitioners often use their legal training to portray non-state practices as inferior and backward.

The view that customary justice systems must become consistent with international human rights norms leads to a second bias, this time on normative grounds. Here, Isser questions the UN’s role as neutral moral enforcer of the rule of law and the normative standards it sets for non-Western societies. In line with the UN definition of the rule of law, Kofi Annan (2004) has called for “due regard to indigenous and informal traditions for administering justice, to help them to continue their often vital role and to do so in conformity with both international standards and local tradition” (13). But Isser contends that “this built-in normative bias poses an obvious challenge facing customary systems that are not based on the international ideal rule of law premised on

Western liberal democracy” (4). There are a number of implications of this, which she highlights. Customary justice institutions are subjected to the regulation of the legal state system even though the formal judiciary remains comparatively far less functional and legitimate than the institutions it is meant to regulate. Also, “it leaves rule of law experts with the choice of either eradicating the deviant customary justice system or intervening to ‘fix’ it in line with the required standards” (Isser 2011, 4).

Isser attributes the third bias to the “peacebuilding as statebuilding” approach which prioritizes

(re)establishment or extension of state sovereignty, including inter alia ensuring state monopoly over the delivery of justice and the regulation of crime. This bias towards recognizing state authority, however weak, makes rule of law practitioners reluctant to acknowledge that the post- conflict state cannot provide basic services such as conflict resolution. Like other critical peacebuilding scholars such as Sriram (2011) and Harper (2011), Isser warns that there is still a dominant view that strengthening customary justice systems would create competition against the state system. While the works of Isser and others have been instructive in questioning these technocratic, normative, and state-centric biases, it is important to underscore that these paternalistic engagements with customary institutions are not a recent phenomenon or just consequences of flawed rule of law programming in post-conflict states. Within the African context, these biases are centrally related to the history of legal pluralism as well as the prevalence of traditional authorities and informal institutions in the post-colonial era.

History of Legal Pluralism in Africa

While Africanist scholars are divided on the extent to which colonial rule impacted African societies, there is agreement that indigenous political institutions and cultures underwent some transformation following the onslaught of colonialism (Ayittey 2006; Merry 1991). At the level of political symbolism, the “kingship” title with which traditional authorities used to be associated was changed to “paramount chieftaincy” in order to subordinate African chiefs to

European imperial monarchs (Farrar 1992). But perhaps the most consequential colonial intervention, whose impact is still evident in Africa today, was the importation of European legal institutions despite pre-existing customary law and justice systems. Describing colonialism in

Africa as “globalization of English law,” Ibhawoh (2009) asserts that “large-scale transfer of laws and legal institutions resulted in a dual legal system—one for the colonized and one for the colonizers, casting the latter as sole possessor of law and civility” (429). Equally, many legal anthropologists and historians have maintained that colonialists’ efforts to impose their model of law on colonized nations left a substantial negative legacy that is visible in many parts of present-day Africa (Gluckman 1969; Joireman 2001; Merry 1991; Moore 1992). For political scientists like Mamdani (1996), the importation of European legal system was the genesis of the notorious “native question” which bifurcated between citizen and subject with its attendant distinction of legal, political, and administrative institutions applicable to each category.

Yet why was a dual legal regime established instead of developing a single integrated system or plurality of legal systems? At the core of this question is indirect rule which Allott (1984) describes as “a way of conserving, recognizing officially, and using indigenous systems of rule and law as essential part of the apparatus of indirect [colonial] administration” (58). Indirect rule, initially introduced in Nigeria by Lord Lugard, implied a form of institutional segregation in which colonial laws protected the legal status of non-natives separate from the natives whose means of legal recourse remained limited to their customary institutions.28 Customary law and justice systems continued to operate alongside the imported English legal structures but were limited to settling civil disputes among natives only. Criminal matters and cases between non- natives or involving natives and non-natives were the prerogative of colonial administrative

28 Indirect rule is normally associated to British colonial system of administration as opposed to the policy of assimilation by the French. Obarrio (2011) argues that the British common law system was more accommodative of customary law unlike the civil Napoleonic codes which were impervious to African customs and traditional forms of justice. However, Joireman (2001) insists that “everywhere the colonial metropole established their own systems of law and dispute resolution, disregarding pre-existing mechanisms of conflict resolution as primitive or appropriate for native only” (571).

officers and judges. A paradox of integration and differentiation, this move was seen as both practical and moral: “practical in the sense that European judges often could not understand the language and custom of people in the dock and moral in terms of legitimizing alien courts in the eyes of Africans” (Ibhawoh 2009, 435). Another practical dilemma of this dualism was the fact that while the colonialists could not rely upon customary law to maintain social order in protected territories, “scarce resources and shortage of administrative personnel made it impossible to rule by coercive means alone” (Akuffo 2000, 139).

Beyond administrative expediency, however, legal institutional dualism was also a means of conquest, subordination, and control. By assuming the role of lending official recognition to customary systems, colonial governments retained ultimate control of those systems, determining which customary law was applicable and supervising their application. Moore (1992) likens this legitimizing idea to the notion of legal evolution that placed British conception of law as “a set of clear rules and duly recorded rulings” above African legal thoughts viewed as “hopelessly muddled with no sense of the importance of evidence and proof, no appreciation of res judicata, and no understanding of the need for impartiality” (13). Based on this perception, colonial officers envisioned their mission as laying the foundation for a modern legal court system to eventually succeed pre-existing quasi-judicial institutions in Africa.29 Questioning the claim that describing customary law as unwritten is simply a technical legal conclusion, Snyder (1984) stresses the political implication which was that “those ideas and their social bases were

29 It is important to point out that most of the British officials who supervised native courts and presided over disputes were administrative officers (e.g., district commissioners and district officers) who had no legal training or practical judicial experience (Chanock 1985; Moore 1992). Hooker (1975) draws attention to the mistaken tendency of equating law to the existence of written texts which then relegates anything unwritten as not a law.

subordinated to the colonial law of European origin, and therefore to the social forces whose interests the latter represented” (36).

Colonial governments adopted numerous instruments to discipline customary law and the institutions that apply them. Among these, the most infamous was the so-called “repugnancy clause” which prohibited the application of customary law deemed to be inconsistent with colonial conception of natural justice, equity, and good conscience (Ibhawoh 2009; Merry 1988;

Moore 1992; Obarrio 2011). Stated unequivocally in various customary court ordinances, the repugnancy principle was used to outlaw African customs deemed to be unacceptable according to colonial standards. The 1957 Local Government Memoranda of Tanganyika (now Tanzania) states that “there are some things which a British government cannot permit, since they outrage our sense of what is just or right” (25). In addition, customary laws were inadmissible if they conflicted with any formal legislation in the colonial territory. As with the repugnancy test, whenever customary law conflicted with colonial ordinances and statutes, those aspects found wanting were not only overruled but also abrogated. Allott (1984) affirms that “repugnancy clauses gave the British judges and administrators the apparent power to delete what they did not like about customary law and to modify substantially [the tolerable aspects] so as to bring them into line with their own ideas and institutions” (59).

Akin particularly to the colonial standard of morality at the time was the concept of the rule of law which Moore (1992) maintains was fundamental to the British way of life and considered one of those concepts that merited transplantation into colonial territories. As the 1957

Tanganyika Ordinance stipulates, colonial officers supervising the administration of native

justice were instructed to put down in writing a body of law so as to meet the requirement of certitude which is pivotal to upholding the rule of law. Instructions to insist on the rule of law when engaging customary justice systems, according to Gluckman (1969), was based in part on the widely held view that conflict resolution in Africa was based solely on occult beliefs and procedures, even though reference to supernatural power was not always the case.30 It was also failure to recognize that some established kingdoms in precolonial Africa (e.g., the Ashanti and

Barotse) had a well-formed body of law, a tribunal of traditional leaders whose decisions were often based on forensic evidence (Allott 1984; Joireman 2001), and that the potential of customary justice systems to resolve disputes lies in their very informality (Gluckman 1969).

Underlying these assumptions was the basic fact of Western (European) arrogance in their perception of superiority of (cultural) norms and values—translated into living standards, lifestyles, and thus an overall “civilized way of life.” This was how the codification of customary law started and what became officially codified was not the rules handed down from the precolonial era but instead an historical construct of colonial encounter. “The nature of law changed as it was reshaped from a subtle and adaptable system, often unwritten to one of fixed, formal, and written rules enforced by native courts” (Merry 1991, 897). Anthropologists were occasionally commissioned to produce a handbook of traditional law and customs (Merry 1991);

30 Gluckman (1969) noted that conflict resolution in pre-colonial Africa was based mainly on a common sense approach and the informal proceedings in traditional courts often achieved similar forensic ends as those achieved in formal courts. It was usual to hear evidence from both litigants before requiring witnesses, to eliminate irrelevant information such as hearsays, and to derive judgment from an accumulating logic of arguments heard. Gluckman identifies three situations where reference to the supernatural was necessary: (1) where the contending parties before the judge are too powerful for the judge to give a decision against one of them; (2) where the offence complained of is itself related to occult practices; (3) where there is strong suspicion but no definite proof and one party requires witnesses to take an oath. In these situations, the effect of occult procedure is to shift some of the responsibility for determining the guilt off the judges (Max Gluckman, Ideas and Procedures in African Customary Law, Studies Presented and Discussed at the English International African Seminar at the Haile Selassie I University, Addis Ababa (Oxford: Oxford University Press, 1969).

chiefs assumed to be loyal to the colonial administration empowered; and assessors (mostly elderly men) deemed to be versed in customary law were appointed to aid colonial officers’ interpretation of customary practices (Moore 1992). In a study on native assessors, Ibhawoh

(2009) notes that “assessors became exponents, interpreters, and sometimes inventors of local customs, shaping the processes and outcomes of colonial law and justice” (432).

However, codification of customary law was not an uncontested and irreversible progressive enterprise—it was highly political with competing interests not just between colonialists and the colonized but also among local interest groups and elites. Using a divide and rule strategy, the metropole rewarded traditional authorities whose interests aligned with imperial policies with more powers (including increased judicial authority) while those in opposition to colonial rule were deposed, exiled, or eliminated by colonial governments. Some accounts show that indirect rule was a response to situations where traditional authorities, whose powers were being undermined by colonial policies, threatened to withhold their support or spark off a rural rebellion. Commenting on the reduction in the number of colonial courts as well as magistrates’ sudden interests in upholding the authority of chiefs and bonds of kinship, Chanock (1985) argues that “an apparent breakdown in order beginning in the 1920s led the British to shift course, putting support behind traditional authorities” (172). Meanwhile, the emerging mission- educated elites, who opposed the increasing powers of traditional authorities and their alliance with the colonial regime, preferred formalization of customary justice as a way to reduce the authority of traditional rulers (Merry 1991). At the same time, Moore (1992) reminds us of anti- centralized movements in local communities that tried “to control their own members and do everything to manage their internal autonomy, bypassing colonial courts and settling their own

affairs internally as they choose” (12). “Some pockets of customs and non-Western law remained and even flourished despite the efforts of colonial officials to eradicate them” (Merry 1991, 918).

Political Economy of Colonial Customary Law

A Marxian reading of customary law helps to situate legal dualism within the local political economy and its connection with the global capitalist order. Marxists link the establishment of the colonial state to “the economic task of opening the pre-colonial subsistent economy for primary accumulation by the metropolitan capital as well as the development of a captive export market” (Akuffo 2006, 137). This link between the state as an instrument of imperial rule and capitalist production drew Africa into a new set of economic relations designed to the advantage of dominant economic classes of the metropolitan center and colonized territories (Cohen &

Daniel 1981; Gutkind & Wallerstein 1976; Harris 1975; Merry 1991). In synch with a dual legal system, there were notionally two separate economic sectors but in reality the pre-capitalist economy became subsumed into the colonial market system. In this political-economy, “law served to extract land from pre-colonial users and to create a wage labor force out of peasant and subsistence producers” (Merry 1991, 891). But conversely, law also became an instrument used by the colonial state and colonizers to restrain the more brutal exploitation of land and labor.

Whether colonial or customary, legal rules were codified in order to regulate labor contracts, land tenure, vagrancy, and to control social relations that affected production, distribution, and exchange (Merry 1991). Colonial courts were instruments for “labor discipline and tax prosecutions, enforcing new colonial regulations about work obligations, labor contracts, and property rights” (Chanock 1985, 236).

To be specific, “the possibility of cultivating cash crop for the market rather than for consumption led to enormous changes in African land tenure systems” (Allott 1984, 59). But there were different approaches to customary land law in settler and non-settler colonies

(Seidman & Seidman 1984). In settler colonies (mostly in east, central, and southern Africa), the system of land law depended mainly on land allocation by government appointed administrative officers and the basic thrust of the law was to establish labor reserves (Cohen & Daniel 1981).

“Land laws placed constraints on the peasant’s capacity to grow cash crops so as to make labor available for European enterprises” (Seidman & Seidman 1984, 53). In order to precipitate labor migration, European entrepreneurs lobbied colonial governments to adopt laws which would make life in the hinterland expensive and arduous, mainly through land reform, poll taxes, hut/head taxes, and marketing rules. Faced with hardship and the need to earn cash to pay colonial taxes in the hinterland, the vast majority of male workers migrated into export enclaves to provide cheap labor as mine or plantation workers.

In non-settler colonies (mostly in West Africa), land tenure was based mainly on land allocation by traditional authorities followed later by the introduction of the right to free alienation which made land available in the open market (Cohen & Daniel 1981). The main purpose of land law in the non-settler territories was to promote cash-crop farming, particularly the growing of cocoa, coffee, palm kernel and raw materials needed in European industries. Before the introduction of the market economy, land holding under West African indigenous legal systems was based on the principle of communal or group ownership. But as Akuffo (2006) laments, “the colonial courts converted community-based property rights into individual rights by enforcing the alienation of communal and family land by contract” (141). Arguing that colonial officials used

“equity as an instrument of dislocation,” he describes the introduction of English conveyance forms as the basis for transforming communal ownership of land into freehold and leasehold systems in West Africa (Akuffo 2006) which then made cocoa and palm oil land available for purchase in the open market (Seidman & Seidman 1984).

As with the process of codifying customary law, it is important to note that the colonial capitalist order did not succeed to wholly supress alternative forms of economy (Merry 1991) nor was the exchange economy entirely new to Africa (Ayittey 2006). At best, the intermixture of various cultural and social structures resulted in an incomplete transformation with colonised people adopting English laws for instrumental purposes accompanied by occasional popular resistance to deflect changes considered too costly. Economic regulations were shaped not just by macro- structural processes to preserve the material interests of the metropole but also by micro-political struggles in which emerging African elites used English law to meet their interests and needs under changing political and economic circumstances. Under such conditions, traditional authorities would equally invoke customary law as a political resource to renegotiate their status and access to resources (Chanock 1985). “The existence of [these] social spaces in which capitalism and law have been resisted and neutralized indicate that the subordination of pre- capitalist societies to western legal forms is neither historically inevitable nor irreversible”

(Merry 1991, 911). At independence, legal development in many African countries was to revolve around the relationship between various legal orders emerging from colonial rule—the

English law as well as indigenous / customary laws.

The relationship between these legal orders, which seem only a formal legal dilemma, actually raised profound political issues regarding national identity and citizenship that were to confound the statebuilding project beyond the immediate aftermath of independence (Moore 1992). In most countries, the “new” educated elites who have been exposed to Western law, succeeded in taking over from colonial rule and were interested in retaining hegemonic bureaucratic and political institutions left behind by their white counterparts. Preference for maintaining the dominance of colonial legal structures, even though they were irrelevant to the majority population at the time, was not because traditional legal systems had been completely compromised or non-existent. Rather, it was because the modern elites’ earlier experience with a specific set of Western institutions had created what Joireman (2001) describes as a “lock-in” in which a particular path was bound to prevail. Lawyers (more so, those trained in the British common law system) who were very active in the independence movement continued to occupy influential positions in government and civil service in the post-independent period. Also, since the modern African elites relied mostly on legal instruments in their independence struggle, they had become adept at negotiating the common laws and therefore had a vested interest in preserving them as dominant state institutions (Joireman 2001).

Meanwhile, considering initial commitment to modernizing post-colonial states, traditional justice systems were largely viewed as barriers to political and economic development processes

(Obarrio 2011). The prevalence of a plurality of legal systems based on varying subnational ethnic identities was also viewed as divisive and inimical to nation-building. Under post- independent modernization, the expectation (of particularly educated elites) was that with education and time the remnants of customs and traditional practices that gave rise to disputes

100

not provided for under English law would eventually wither away (Harrell-Bond et al. 1974). Yet again, “the resilience and transforming creativity of traditional justice practices” (Obarrio 2011,

31) manifested itself in the post-colonial polity with traditional authorities carving out new political spaces for themselves. In September 1963, an African conference on Local Courts and

Customary Law was held in Dar-es-Salaam in which it was noted that customary law in certain matters was unlikely to disappear in the foreseeable future. With respect to local courts, it was the opinion of 12 newly independent states in attendance that such courts should become an integral part of the formal judiciary so they could apply uniform rules of court and receive proper training.31 However, the extent of incorporation was left to each country and since then the experiences of post-colonial states have ranged from full to limited incorporation.

Whether the strategy is full or limited incorporation, it was clear at the dawn of independence that the relationship between formal and informal justice systems would become highly complicated, involving conflicting interests both at the macro- and micro-political levels. That the modern state, whose institutional legitimacy was contested during colonial rule, would now be used by a small group of educated elites to exact control only serves to further alienate state institutions from the local population. With a colonial history of top-down imposition that benefited the dominant class and excluded majority rural inhabitants, any attempt to expand the authority of the post-colonial state was bound to meet some resistance, requiring negotiation with traditional rulers who continue to be powerful gatekeepers in local communities. Indirect rule meant the state bureaucratic and economic infrastructure was sparsely available across colonial

31 Report on the recommendation of the conference of Customary Law and Local Courts held in Dar es Salaam, Tanganyika on the 9-17 September 1963, complied by Jacob O. Ibik of the Customary Law Commissioner’s Office, Ministry of Justice in Nyasaland. In attendance were representatives from Ethiopia, Ghana, the Ivory Coast, Nigeria, Northern Rhodesia, Nyasaland, Sierra Leone, Sudan, Uganda, Kenya, Tanganyika, and Zanzibar.

101

territories, a cheap administrative system which left traditional structures more visible and relevant compared to the modern state. If traditional legal institutions remained relevant to preserving customary rights and resources, then regulating them has profound implications for local balance of power and access to local resources. For those customary norms that survived colonial rule, they may not necessarily be an imposition to traditional rulers (Ayittey 2006); but rather a reflection of the social and cultural fabric of society which cannot be changed by merely codifying customary law. It is not surprising therefore that these complicated issues have dominated the Africanist literature on institutional building for more than half-a-century.

Chieftaincy and Traditional Authority

The post-colonial Africanist literature on traditional authority is generally bifurcated into “chiefs as depots” vs. “chiefs as representatives” explanations (Acemoglu et al. 2013). Both propositions

“draw sharply different conclusions with regards to whether the resilience of traditional authorities should be attributed to preferences of the mass public or only at the behest of the state” (Lohan 2011, 1). The usual reference point for the “chiefs as despots” argument is

Mamdani (1996), who has argued that colonial indirect rule succeeded in transforming tribal leaders into “decentralized despots.”32 Building on Mamdani’s “decentralized despot” thesis,

Maru (2006) contends that “while the colonialists transformed chiefs from sovereign kings into colonial agents, they simultaneously put chieftaincy out of the reach of traditional sanctions such as the right of subjects to depose their chiefs” (435). For Maru, this is “rural governance by proxy”—the contemporary manifestation, via chiefdom governance, of indirect rule. Other

32 Although the theoretical reference point is usually Mamdani’s Citizen and Subject (1996), there are earlier scholarship referring to state-society relations in Africa. See Bates 1983; Berry 1993; Ekeh, 1975; Jackson & Rosberg 1982; and Migdal 1988.

102

scholars argue that when chiefs are unconstrained by open political competition, they misappropriate rural social capital in pursuance of particularistic benefits and leadership dominance (Acemoglu et al. 2014). Some have gone as far as to link the outbreak of civil wars to dissatisfaction with, and alienation from, customary justice systems, particularly among rural youth (Richards 1996).

Such arguments are about the extent to which the incorporation of chieftaincy into central administrative systems has fundamentally altered the sources and nature of legitimacy of chiefly authority (Ray & van Nieuwaal 1996; Trotha 1996). For instance, van Nieuwaal (1996) stresses that politicization of chieftaincy “changed the bases of power and authority of African chiefs and the institution lost its independence by becoming more or less part of the central political system” (42). Together with Ray (1996), they draw attention to “folklorization”, a process through which chiefs bestow traditional legitimacy on national leaders. This political instrumentalization of chieftaincy “separates the spheres of power and tradition, while at the same time integrating the sphere of tradition into the space of power and domination as a symbolic legitimizing resource” (Van Nieuwaal 1996). In addition to particularistic patrimonial relationships, others have attributed stability of chieftaincy to the distributional authority of chiefs as custodian of land and other local resources (Ntsebeza 2004).

Conversely, the “chiefs as representatives” or “social capital” explanation links the endurance of traditional institutions to their moral sources of authority. This argument stresses that traditional authorities are legitimate and effective in contrast to formal state institutions which continue to grapple with credibility deficit since colonial rule. It is argued that unlike other governance

103

institutions externally imposed by colonial administrations, the authority of customary leaders is rooted in historical continuity and moral right to rule (Englebert 2000). This claim challenges the view that colonial and post-colonial state formation signifies a total loss of indigenous identities, norms, and belief systems (Ayittey 1991; Williams 2010). Although traditional structures may have undergone some transformation and adaption in response to external interference, it insists that the moral and symbolic connection between chiefs and their people remains intact.

Moreover, accessibility and familiarity with traditional authorities means they are readily reachable where the state is unable or unwilling to provide public goods. Logan (2011) concludes that traditional leaders do not derive popular legitimacy only from “who they are” but also from “what they do” (2).

Combined, these two competing explanations enrich our understanding of the factors that explain the resilience of traditional institutions amidst processes of political and economic liberalization in 21st century African politics. But these adversarial perspectives tend to obscure as much as they illuminate. Initially, this debate remains caught up in binary assumptions over the sources of chieftain authority—either at the behest of central state power or rooted in moral right to rule.

Manning (2009) argues that the debate between “chiefs as despots” and “social capital” is futile as “local governance involves an array of institutions and individuals that draw legitimacy from a range of heritages including customary, colonial, and modern systems” (2). Instead, she draws attention to areas of mutual accommodation and adaptation involving interlinked networks of institutions and individuals with overlapping sources of authority (Manning 2009). In a recent case study of the South African province of KwaZulu-Natal, (Kramer 2016) also concludes that chieftaincy is neither despotic nor civil but located in an intermediary position between local

104

citizens and the state. This finding re-echoes Buur and Kyed (2006) who argue that “views of traditional authority as either a genuine African form of authority legitimized by traditional beliefs and practices, or as a form of power corrupted by colonial rule, are inadequate for understanding the current situation’ in post-colonial Mozambique” (847).

Moreover, there is presumably substantial variation over time and place even in the same historical context. Maclean (2010) has cautioned that state-society relations is not a zero-sum game of one transplanting the other; rather identities are being recast, reconstructed, and complicated in multiple ways. It is misleading to consider traditional authorities as essentially undifferentiated class of customary leaders who can be contrasted with state-constituted institutions or officials. While traditional authority remains an important source of chiefly rule, there are distinguishable varieties of chieftaincy and multiple layers of authority structures which suggest the extent to which the institution is linked to, and interacts with, the modern state system. These complex realities should not be dismissed as mere outliers but are suggestive of the need to move beyond binary explanations to focusing on how different sources of legitimacy interact in specific institutional context.

Politics of Informalization

The literature on informal politics in Africa has undergone tremendous transformation from the marginalist view of informal institutions to what is now known as the informalization approach to politics. Many scholars have affirmed the positive role informal institutions play through complementing or substituting the performance of the formal market or state (Brautigam 1997;

Meagher 1995; Roitman 2005). Medani’s (2011) study of informal networks in Egypt and

105

Somalia provides empirical support to affirm that these non-state actors have the institutional capacity and legitimacy to provide social protection to people in areas where the formal state is either unable or unwilling to do so. For instance, although hawwalat money transfers in Somalia are transacted in the absence of legal oversights, Medani observes that they are regulated by specific local norms of reciprocity embedded in clan loyalties. The underlying finding in these studies is that transaction costs and commitment uncertainties are lowered by an extensive network of family, associates, friends, kinsmen, and neighbors who conduct business based on interpersonal trust and provide needed information through informal channels.

Others caution that informal institutional networks may be encouraged due to perverse incentives such as achieving goals which are not permissible in normal bureaucratic politics. Van de Walle

(2001) contends that neopatrimonial rule—personalization of institutions in ways that compromise their legal-rational authority—is the distinctive hallmark of contemporary politics in

Africa. This hybridized form of governance retains formal rules yet manifests itself through “big- man” presidentialism, systematic clientelism, and an undistinguished mix of personal and public resources (Bratton and Van de Walle 1997). From this perspective weak institutional capacity is endogenous to the political systems of some African states, meaning that some state actors have found low state capacity quite useful if and when they themselves have precipitated it (Van de

Walle 2001). In fact, Bratton and Van de Walle (1997) argue that when the patrimonial logic is internalized in formal institutions, it provides “essential operating codes for politics” that are recurring and reproduced over time. The broad routinization of an established set of behavioral norms and procedures is testimony that neopatrimonial practices are more than the idiosyncratic expressions of individual leaders.

106

For Chabal and Daloz (1999) weak institutionalization in Africa is a political practice: institutions remain vacuous and ineffectual because their usefulness is greatest when least formalized. In what these scholars construe as the “political instrumentalization of disorder” they argue that the political, social, and economic logics of contemporary Africa do not fit the

Western experience of development. By “political disorder” they mean “politics in Africa is not functionally differentiated or separated from the socio-cultural considerations which govern everyday life” (148). Also, weak and ineffective state institutions are profitable to political elites who use the political machine to meet the demands of their clientelist networks in exchange for the recognition, political prominence, and social status. Politics is thus about the search for a position of esteem which derives in large part from such subjective factors as status, respect, and affection. Chabal and Daloz (1999) conclude that “while petty corruption is usually despised by the population at large, there is often recognition that the elites’ much more significant abuse of power serves a larger and more legitimate ‘moral’ purpose” (159). Consistent with Hyden’s

(1983) “economy of affection,” these authors portray a political system whose logic is based on the proximate: the local and communal. Its legitimacy depends on the ability to deliver material favors to those who have personal links to political elites through the micro-networks of patronage and clientelism. “There is no scope within such a perspective for deferring to a larger but less immediate macro-rationality or the greater good of the country as whole” (161).

Meagher’s (2010) authoritative study of social networks and the informal economy in Nigeria attempts to bridge the gap between romanticizing informal institutions as popular entrepreneurship and castigating them as parochial predation. She argues that under certain conditions, social networks can constitute social capital or social liability. “In addition to

107

providing an informal framework for greater efficiency” she asserts, “networks can operate as mechanisms of collusion that disrupt economic development” and good governance (19).

However, the literature on informalization in Africa focuses almost exclusively on governance institutions in the context of economic and political liberalization. Questions about rule of law engagement with customary justice systems in post-conflict contexts is completely outside the debate even though traditional justice remains central to the institution of chieftaincy and access to local resources, votes, and labor. But perhaps the greatest disadvantage is derived from a long- standing fixation on institutional stability as exemplified by the concept of neopatrimonialism which focuses only on the subversive influences of informality on the post-colonial state in line with Ekeh’s (1975) “two publics” metaphor. This conservatism remains in vogue even when emerging studies on democratization (particularly in Latin America) are suggesting multiple ways of institutional interaction between formal and informal institutions.

Conceptual Framework

My research draws from Helmke and Levitsky’s (2004, 2006) model of informal institutional change to stipulate four modes of strategic interaction between official and unofficial primary justice systems: complementary, substitutive, accommodative, and competitive. Based on their analytical model, I identify the interaction between formal and customary as complementary when traditional authorities refer certain cases beyond their jurisdiction for adjudication in a state-constituted court system which has legal authority over such matters. The relationship becomes substitutive when traditional authorities are allowed to handle or withdraw from the state system cases that require compromise settlement outside formalized justice procedures. Accommodation occurs when the state-administered system conflicts with

108

customary institutions but is accepted to operate in a subnational locality provided certain matters are left in the hands of traditional authorities or handled in conjunction with them. The relationship is accommodative particularly when the official system seems relatively strong

(though ineffective) but the interaction moves tacitly toward protecting the interest of ruling elites, both at the national and local levels. Competitive interaction signals resistance to what is perceived as a powerful parallel authority beyond local control and here traditional leaders adjudicate matters in competition with the state-constituted court system even though they possess no legal authority to do so.

I build on their original framework to present a two-dimensional typology that explains when and in which subnational space a particular mode of formal / informal justice interaction is likely to occur and to be effective (see the model below). The first dimension in my model defines the extent to which rule of law and customary justice norms converge or diverge in a specific local context. For the purpose of this research, justice norm is defined both in terms of the procedures through which disputes are settled and substantive outcomes of such a process. The second dimension examines the effectiveness of a state-constituted justice system defined in terms of its ability to deliver accessible, affordable, and timely resolution of disputes in regional localities.

But while the interaction between justice norms and institutions are mutually reinforcing, their net effect is mediated by a third factor which focuses on local power relations, particularly the position and influence of traditional authorities within a subnational authority structure. Power in this context is limited to the ability to exercise regulative control (or influence the exercise of that authority) over local communities and resources. Traditional authorities are mainly local

109

chiefs who are presented not as passive actors in the face of top-down reform but as powerful community gatekeepers who use their position as custodians of local political (e.g., votes and support of government policies) and economic (e.g., land, labor, and diamonds) resources to influence interaction with formal state institutions and actors. For these chiefs, customary law and customary justice are not just about conflict resolution; rather, they are an essential means of maintaining law and order as well as maintaining control over local resources within the context of modern capitalism. This local power dimension (i.e., whether the status-quo is maintained or altered) is a critical factor determining when the interplay between justice norms and institutions becomes conflictual or collaborative.

Figure 2.1: Formal and Informal Justice Interactions Model

Local Local Convergent Accessible/ Divergent Inaccessible power power procedures Affordable procedures /Costly/ relations relations /outcomes /Timely /outcomes Delayed intact altered

Complimentary Accommodating

Substitutive Competitive

Effective System Interaction Ineffective System Interaction

As can be seen in the model, this research uses a complex conceptual design to identify, describe, explain, and then analyze the various factors and dimensions in justice system interactions in 2 countries in West Africa. As war-torn societies, Sierra Leone and Liberia offer an appropriate context to find out how local communities react to democratic rule of law reforms

110

that can potentially affect the stability of informal conflict resolution mechanisms. Beyond what is stipulated in legal instruments, this context contains complex social forces which shape formal and informal institutional interactions with important outcomes at the subnational level.

Although rebuilding the rule of law is essentially about strengthening formal institutions, there is urgent need to examine the link between customary systems and traditional authority, the impact of formal regulation on local conflict resolution, and the multiple ways primary justice systems interact in war-torn societies. Moreover, unlike Latin America, engagement with traditional justice systems in post-conflict African states takes place in the aftermath of civil wars partly blamed on the breakdown of customary governance systems (Ellis 2003; Ellis & Utas 2008;

Maru 2005; Richards 1996). It must also be noted that whereas rule of law programming abroad generally receives international technical assistance, the predominance of external influence in post-conflict societies may be archetypal. As the remainder on this dissertation demonstrates, these are the complex social forces shaping state-society relations in post-colonial Africa and which, to date, have determined what is feasible and desirable in terms of rule of law reforms.

111

CHAPTER THREE The Political History of Sierra Leone and Liberia

Introduction

Following Chapter 2 which concluded by synthesizing the literature on customary law and institutions in Africa, this chapter aims to analyze major historical antecedents that are crucial to understanding the evolution of customary justice systems in post-conflict Sierra Leone and

Liberia. The history of traditional institutions in these two countries have been well documented by a number of excellent scholarly works; therefore, the narrative developed here focuses only on key historical encounters with the modern colonial and post-colonial state which have shaped traditional authority structures.33 The chapter is divided into two main sections. Beginning with

Sierra Leone and then Liberia, the first section examines formal policies and practical political engagements with traditional political systems from colonial rule until the outbreak of civil wars in both countries. An attempt is made to present state-society relations as complex dynamics of domination, resistance, alliance, and agency. The second section explores the role of customary institutions during the war period, paying close attention to how such institutions shaped the nature and conduct of violence. While the dominant literature considers traditional authorities as mainly target of state formation and inter-generational violence, this chapter unravels how traditional actors have historically used their agency to influence the modern political economy from colonial rule to the politics of armed conflict.

33 Most of the major collections on the political history of Sierra Leone and Liberia have been documented by historians, legal anthropologists, and political geographers.

112

Declaring a British Protectorate over the Hinterland of Sierra Leone

Like many other African countries, pre-colonial societies in Sierra Leone had functional political systems with institutions capable of maintaining law and order as well as checking the potential excesses of rulers. Administratively, the historical evidence demonstrate the existence of various forms of authority ranging from inland personal hegemonies, traditional kingdoms, to secular republics (Abraham 2003; Barrows 1976). In terms of the administration of justice, the usual practice was to constitute a panel of elders to resolve disputes according to customary norms of acceptable behavior (Abraham 1978; Alie 1999; Finnegan & Murray 1970). But in 1896, almost a century following the 1808 establishment of a Crown colony in Freetown, the hinterland of

Sierra Leone was formerly declared a British protectorate leading to external interference into what otherwise may have been a natural evolution of indigenous governance systems.

Two main factors precipitated the decision of the British to abandon their long-standing non- expansionist policy. Firstly, it was a geostrategic move in line with the 1885 Berlin principle of

“effective occupation” to keep at bay Britain’s imperial rivals, particularly the French, whose territorial dominion in West Africa extended to neighboring Guinea and Ivory Coast.34 In the late

1800s, French troops were advancing into territories within British sphere of influence along the north-eastern flank of Sierra Leone under the guise of pursuing Guinean Sofa warriors led by their recalcitrant traditional ruler, Samori Toure (Alie 1990). Initial attempts to halt French annexation of Sierra Leonean territory resulted in the first physical confrontation between colonial powers in the 19th century European scramble for Africa—the 22 December 1893

34 Convened by the German Chancellor Otto Von Bismark, the conference ended up with the General Act signed by major European powers on 26 February 1885. Chapter 5 of the Act required any power in possession of territories in Africa to maintain sufficient authority to administer and defend them.

113

Waima incident in which a small number of British and French soldiers were killed (Alie

1990).35

The second reason for expanding British colonial rule to the interior of Sierra Leone was economic. Prior to establishing formal control over the hinterland, European merchants and

British subjects in the colony who were engaged in trade with the indigenous population, had drawn the colonial government’s attention to the commercial opportunities available outside the colony of Freetown. Growth in this unofficial trade not only supported the economy of Freetown but also coincided with the advent of the so-called “legitimate trade” which was geared toward export of raw commodities to European industries in lieu of the abolished Trans-Atlantic Slave trade. But numerous wars among local chiefs, competing for control of trading centers and routes as well as for expansion of their territories to acquire slaves for labor, were creating considerable hindrance to peaceful trade between the colony and interior areas (Abraham 2003, Tangri 1976,

1980).36 Realising that local rulers were unwilling to surrender their sovereignty through

“friendship treaties” and considering the geostrategic and economic importance of the hinterland, the Colonial Office granted approval to Governor Frederick Cardew to officially annex the interior parts of Sierra Leone.

35 It is not clear how many French and British soldiers were killed in this incident. But Alie (1990) states that Lieutenant Gaston Maritz and a small squadron of French soldiers attacked a British expedition force of 470 personnel under the command of Captain E. A. W. Lendy, mistakenly assuming that the latter were Sofa warriors encamped in Eastern Sierra Leone. Claiming that French soldiers were the aggressors, the British requested compensation and 9,000 Pounds was later paid to them. 36 Often, these pre-protectorate wars are described as primitive tribal wars or slave raids. But Abraham (2003) cautions that local warfare was an important institution utilized to build political, social, and economic systems at the time. These wars were not between antagonistic tribes per se, but initiated by warrior leaders with the serious economic objective of controlling trade. The acquisition of slaves and captives was in part deemed necessary to ensure adequate supply of labor needed to produce legitimate crops for European markets. In other words, the legitimate trade which replaced the Trans-Atlantic Slave trade only diverted the demand for labor within Africa itself and was a major cause of wars.

114

Based on the 1882 Anglo-Liberian and 1885 Anglo-Franco boundary agreements, the British protectorate was defined as territories which were bounded on the north-east by the line of frontier bordering Guinea, on the south-east by the line of frontier bordering Liberia, and on the south-west by the Atlantic Ocean, except portions of the colony comprising the Peninsular of

Sierra Leone and outlying Islands (The Protectorate Ordinance, Cap. 60: 2, 1896).37 Formalized by an Order-in-Council under the Foreign Jurisdiction Act, the 1896 Protectorate declaration brought all territories adjacent to the colony under Her Majesty’s protection through an indirect rule system that utilized traditional authority structures for extractive and regulatory purposes including collection of taxes, preservation of law and order, and mobilization of labor for agriculture and public works. For administrative convenience, pre-existing boundaries were redrawn dividing the protectorate into five territorial districts, each under the supervision of a

European District Commissioner. Districts were sub-divided into chiefdoms headed by paramount chiefs, especially those who had signed “treaties of friendship” (later known as treaty chiefs) but who became answerable to the District Commissioner mandated to report to the

Governor any conducts deemed subversive to the interest of good government in his district

(Cap. 60: 25, 1896). To meet administrative cost, a minimum tax of five Shillings was imposed on every dwelling house (excluding a house owned or occupied by a non-native) to be collected by chiefs who would receive a rebate of 5% on amounts collected.

In legal affairs, the most noticeable demonstration of indirect rule was in the field of law and its attendant courts system. In the colony, “the English common law prevailed and the jurisdiction

37 These initial agreements did not end boundary disputes between these Manor River countries. A dispute between Guinea and Sierra Leone over the border village of Yenga was only recently resolved by a Joint Government Declaration on 27 July 2012 after French and British experts invited to interpret available historical records failed to agree on interpretations of the 1912 Protocol signed between the two colonial powers.

115

of the courts was completely patterned after the British system with statutes passed in Britain applicable to British subjects” (Collier 1970, 54). But in the protectorate, a separate justice system was constructed via a number of Court Ordinances which established a hierarchy of three courts.38 The lowest court in this hierarchy was the Court of Native Chiefs which was given jurisdiction according to native law in all civil cases arising exclusively between natives other than cases involving a question of title to land.39 In criminal cases, “their jurisdiction was limited to matters arising exclusively between natives but excluding cases of murder, culpable homicide, pretended witchcraft, slave dealing, and certain other serious crimes such as cannibalism, or offences relating to certain secret societies” (Brooke 1953, 6). Next, was the combined Court of the District Commissioner and Native Chief which had jurisdiction over practically all cases between natives and offences committed by natives against non-natives including the power to inflict death sentences. Although two or more chiefs were nominated to sit with the

Commissioner in this court, the power to make decisions was the prerogative of the District

Commissioner. Above the combined court was the separate Court of the District Commissioner authorized to settle any matter, particularly those involving commercial disputes, breach of contracts with expatriates, and allegation of slave dealings (Abraham 2003; Smart-Joko 1986;

Kilson 1966; Kup 1975).

38 The initial ordinances included Protectorate Courts Ordinances No. 20 of 1896 and No. 11 of 1897; Protectorate Court Ordinance No. 33 of 1901 which repealed the two Ordinances of 1896 and 1897; and the Protectorate Courts Jurisdiction Ordinance No. 6 of 1903 (Cap. 169 in the 1925 Edition of the Laws which was repealed by the Native Courts Ordinance No. 40 of 1932). 39 A definition of “native” was inserted in the Protectorate Ordinance (Cap. 185) by the amending Ordinance No. 15 of 1949. The term means any member of the aboriginal races or tribes of Africa ordinarily resident within the Protectorate or within the territories adjacent thereto outside Sierra Leone. Non-natives include Europeans, Syrians and Krios or Sierra Leoneans at the time. Non-natives later became known as strangers (also see N.J. Brooke, Report on the Native Court System in Sierra Leone, The Government of Sierra Leone, 1953).

116

Major restructuring of Native Administration by the colonial government took place in the

1930s. In addition to the Native Courts Ordinance which came into force on 1 January 1933, the

Chiefdom Treasuries and Tribal Authorities Ordinances of 1937 introduced to the Protectorate a system of chiefdom governance in force in Nigeria and Tanganyika. The Native Courts

Ordinance made provision for three classes of native courts: (i) Courts of Native Chiefs, (ii)

Native Appeal Courts, and (iii) Combined Courts for trying certain classes of cases arising between natives and non-natives. Also, these courts were organized in a hierarchy from the subordinate courts of headmen or section chiefs to the court of paramount chief which was to hear all appeals from the lower chiefs’ courts. The Group Native Appeal Court system was to serve as an appeal court for cases adjudicated by paramount chiefs while the Combined Court should include a non-native resident sitting with chiefs on matters relating to commercial disputes. The 1932 Forced Labor Ordinance was passed to set limits to the amount of free labor chiefs could extract from their subjects.

A Tribal Authority (TA), comprising men of note elected by the people according to native custom and approved by the Governor in a published Gazette, was established primarily to pass by-laws necessary for maintaining order and regulating crime in the protectorate. As long as such laws were “not repugnant to morality” or in conflict with colonial ordinances, the Tribal

Authority could issue orders prohibiting acts that might cause a breach of the peace as well as requiring the registration of birth and death of natives (Tribal Authorities Ordinance, Cap 60: 8,

1938). To assist Tribal Authorities and Native Courts to enforce law and order, a Chiefdom

Police Force to be supervised by a District Watch Committee was established (Chiefdom Police

Act, Cap. 128). In the area of revenue collection, a local tax of 4 Shillings per adult male was

117

introduced in addition to other fees and licences. And in order to create what Barrows (1976) describes as “an institutional buffer between public funds and Paramount Chiefs’ private purse” the Chiefdom Treasuries Ordinance required chiefs to deposit revenues raised in their localities into a Chiefdom Treasury (Cap. 62, 1937). In return, Paramount Chiefs were to receive a fixed monthly salary from the government. Tribal authorities, expected to represent 20 taxpayers, were later to constitute the Electoral College to elect paramount chiefs among aspirants from contending ruling houses in a chiefdom. Efforts to further modernize local governance and introduce distributive functions led to the formation of modern District Councils in 1946 as a second tier of local government, according to Commissioner Hubert’s Rural Development Plan.

These restructuring of interior administration coincided with efforts to further open up some areas of the hinterland to the modern money economy, particularly the exportation of mineral resources and cash crop production in palm kernel, cocoa, coffee, and piassava.40 Between the late 1920s and early 1930s, deposits of iron ore were discovered in the northern districts of Port

Loko and Tonkolili. In 1933, which was approximately three years after discovering rich deposits of alluvial diamond deposits in the eastern region, the Sierra Leone Selection Trust

(SLST) Company was granted an exclusive prospecting and mining lease covering the whole of

Sierra Leone for 99 years, although the company’s operations were concentrated in the eastern district of Kono. The construction of a single-track railway linking other parts of the interior with the colony was an added impetus to cash crop production as produce could now be transported to

Freetown both for colony consumption and export to European markets. These regulative and

40 Plantations in cocoa and coffee were relatively on a small-scale compared to production enclaves in other West African countries such as Ghana and Ivory Coast.

118

extractive motives for the colonial statebuilding project have significant resemblance with the historical experience in neighboring Liberia.

Settler-indigenous Relations in Liberia (1885-1944)41

Although the absence of formal colonial experience sets Liberia apart from the historical trajectory common to most African states, the evolution and contemporary manifestations of state-society relations in this country offer important parallels with neighboring Sierra Leone.

Like Freetown, Monrovia, which has now become the capital of Liberia, was originally founded for freed slaves, the first batches from the US and Barbados arriving in 1822.42 For about half-a- century since the founding of a settler society by the American Colonization Society (ACS), the colony’s territorial reach was limited to few coastal enclaves, administered separately by a system of laws and government patterned after the American model (Levitt 2005; Lowenkopf

1976). However, imperial rivalries in the aftermath of the 1885 Berlin conference meant that

Liberia could no longer rely on its 1847 declaration of independence to maintain territorial integrity—effective control of territories was necessary in the face of European imperial and commercial interests along the West African coast (Levitt 2005; Sawyer 1992).

In order to deter European encroachment and maintain formal authority over the hinterland of

Liberia, the Liberian government opted for the indirect rule system implemented by Britain in

41 I am using the term settler-indigenous relations (elsewhere, settler-native) not as two watertight social categories devoid of intercultural interaction and assimilation; rather, as a portrayal of the historical relationship between the aggregate settler group (which included Black American emigrants, recaptives, and their descendants) and the original inhabitants of Liberia whom the settlers met upon arrival. 42 The first settlers were later joined by other emigrants including free-born African-American from Virginia, North Carolina, New York, Philadelphia, and Rhode Island as well as “recaptured” Africans liberated on the high seas by American naval vessels. Members of the second group (recaptives) were mainly from the Congo Basin (hence, the Congoes) where slave ships bound for America were intercepted following the abolition of slave trade in the US.

119

neighboring Sierra Leone. Ruling over indigenous peoples through their chiefs was found useful as it “allowed Americo-Liberians to have nominal political control over the hinterland and at the same time opened economic and political avenues for settler exploitation” (Harris 2012, 47).43

Indirect rule was introduced in earnest by President Arthur Barclay (1904-1912) who simply replicated the Sierra Leone model in terms of establishing an administrative and judicial hierarchy and relegating the role of resource extraction and mobilization to chiefs who became government commissioned officials (Sawyer 1992). Chiefs received a commission of 10% for taxes collected including a hut tax levied on every inhabitable house in their chiefdom. An important mechanism for the enforcement of law and order was the Liberian Frontier Force

(LFF) established with substantial British input. Based on the recommendation of Braithwaith

Wallis, the British Consul to Liberia, President Barclay appointed British Captain Mackay

Caldwell to organize the LFF who in turn employed the assistance of two other British officers and 10 sergeants from the Sierra Leone Frontier Force.

The Rules and Regulation Governing the Hinterland (hereafter Hinterland Rules) reorganized the administration of justice in the hinterland into courts of general jurisdiction and courts of limited jurisdiction. The courts of general jurisdiction consisted of the Provincial Circuit Court of

Assize and administrative courts of provincial and districts commissioners while those of limited jurisdiction included the joint courts of district commissioners and paramount chiefs and courts of paramount chiefs. Article 38 (3) of the Hinterland Rules made a distinction between civilized

43 Starting here, the term Americo-Liberian will be used to refer essentially to the ruling political and economic elites of the broader settler group whom, Nelson (1985) notes, constituted no more than 10 percent—about 1500 to 2000 people—of the entire Americo-Liberian population during the Tubman and Tolbert eras. It is important to note that, despite their common heritage, majority of Americo-Liberians belong to the underclass during the heydays of settler domination.

120

people and natives in the application of Liberia’s criminal code in the interior.44 Whereas all cases arising between civilized people shall be tried in the District Commissioner’s Court, all suits between a civilized person and a native should be heard in the Joint Court of the District

Commissioner and Paramount Chief. Similarly, Article 40 stated that all cases arising between strangers and members of a tribe, except they are civilized people, should be tried by the paramount chiefs’ courts. A complex system of appeal was put in place in which appeals from judgments of district commissioners were to be heard by provincial commissioners and those from judgments of county commissioners referred to the courts of county superintendents which operated under the Ministry of Interior.

Administratively, the hinterland was divided into three provinces (western, central, and eastern), each further sub-divided into chiefdoms. This arrangement left the interior in a politically subordinate relationship with the coastal counties whose jurisdiction came directly under the authority of statute laws based on the 1847 constitution. In terms of access to land, the

Hinterland Rules stipulated that title to all lands in Liberia was vested in the sovereign state under Americo-Liberian hegemony. According to Article 66, land title could be translated into communal holdings upon application to the government by a tribe which would bear the cost of demarcating the land for such purpose. Where an application was processed, tribal authorities were to be considered as trustees of the demarcated communal land which could only be rented to outsiders with permission from the community. Transforming communal holdings into family titles conferred freehold claim to individual families but this procedure also required petition to

44 The Rules and Regulation Governing the Hinterland document does not define who is considered a civilized persons, although this may presumable mean indigenes who are able to attain Western cultural lifestyles as exhibited by the privileged Americo-Liberian class.

121

the government for division of tribal land and only tribes that had sufficiently advanced in the arts of (western) civilization could submit a petition.

Perhaps owning to what Sawyer (1992) described as “persistent deterioration of government finances and growing demand for labor” (199), the implementation of indirect rule by successive governments after Barclay’s was geared toward greater centralization and supervision of local authorities. Vesting ownership of communal land and labor in sovereign state authority was in line with Liberia’s integration into the global economic order. Known as the Fernando Po affair, a 1914 formal agreement between Liberia and Spain had committed the Liberian government to supply contracted labor to the Spanish island of Fernando Po. A thriving cacao plantation region, the island was in dire need of a dependable flow of workers which could not be obtained legally or cheaply from adjacent British and French colonies (Nelson 1985). Also Liberia entered into series of concessionary lease agreements which made vast rural lands available to foreigners for plantation estates, iron ore mining, and timber extraction. In 1962, the government granted

Firestone Tire & Rubber Company of America a lease of 1 million acres of land for 99 years at a rent of 6 cents per acre. Article 2 of the Act establishing Firestone Plantations required the

Liberian government to encourage, support, and assist efforts to secure adequate labour supply for the company.

Contrary to the colonial domination paradigm, this early historical evidence suggests that protectorate administration under indirect rule in both countries was not without active

122

participation, local resistance, and agency of interior people.45 There were important violent uprisings among some traditional rulers who mobilized their people to protest against what they perceived as the deceptiveness of friendship treaties, illegal punitive expeditions, brutality of

Frontier Forces, and imposition of a hut tax without their consent. For instance, resistance to

Americo-settler domination culminated in numerous deadly conflicts led by indigenous rulers in rural Liberia (Lewitt 2005). Starting with an embargo on trade with the colony, the Mende uprising in Sierra Leone equally turned out to be a brutal massacre of members of the Frontier

Force, traders, missionaries, and Krios who were considered collaborators of colonial rule

(Abraham 2003; Alie 1990). Growing disdain for chiefs and violations of local laws by European and Krio traders were precursors of what culminated into the famous 1898 Hut Tax War in the northern region of Sierra Leone (Wylie 1977). Although violent rebellions yielded to superior colonial authority, “Governor Cardew was taken by surprise because he never thought that the natives he so despised as savages had any institutions capable of this kind of organization”

(Abraham 2003, 194). It also became clear that beyond formal declarations, the extension of state authority into interior areas would be fraught by ongoing contestation, resistance, and negotiation with traditional authorities and their people.

These initial attempts to extend formal authority also raised profound legitimacy questions with far-reaching implications both for the modern statebuilding project and for rural governance in both countries. Initially, the impetus for declaring a protectorate over the hinterland was externally-driven to meet the geostrategic and economic concerns of the colonial metropole

45 Narratives that are based on “the Black colonialism paradigm” usually interpret accounts of indirect rule as purely imperial domination. This emphasis on vertical superordinate power relations often obscures instances where Africans sought to assert their authority and sovereignty in the face of external intrusion (Levitt 2005).

123

instead of an effort to administer public service in local areas. By focusing on regulative and extractive functions, the few bureaucratic institutions which interior residents came in contact with were known only in terms of their coercive roles and centralized authority structures. The same extractive motives underpinned expansion of the cash economy as modern infrastructures were sporadically extended just for the purpose of exploiting cheap labor, mineral resources, and raw agricultural materials to benefit the metropole. While indirect rule conferred formal recognition to amenable traditional institutions, they were taken out of the pre-colonial norm of downward accountability and adopted the same imperial regulative agenda associated with the modern political economy. Alie (2008) notes that colonialists reorganized the local judicial system in Sierra Leone to place emphasis on litigation and introduce court fees and fines as a mechanism for generating revenue needed for local administration. As the money economy permeated the interior, the hitherto voluntary tribute system through which indigenous people showed occasional appreciation to their chiefs was transformed into regular free labor needed to cultivate chiefs’ farms (Cartwright 1970; Keen 2005; Kilson 1966; Richards 2005). The role of chiefs in supplying involuntary paid labor for private enterprises (such as Firestone) was enshrined in Liberia’s Hinterland Rules as part of their mandate to conscript laborers for public works and porterage. The long-standing “pawning” and “indentured servant” system was transformed into a source of cheap labor transported to Fernando Po. These external influences started eroding the social relevance of those traditional institutions that were being reconstituted by the modern state administration.

Furthermore and perhaps more importantly, indirect rule introduced major structural changes that were to shape questions of citizenship, property rights, and access to justice in the post-colony.

124

This colonial history shows that local legal systems were bifurcated not only between formal

English and customary law systems but also in terms of customary mechanisms within and outside the state-constituted system. Apart from practices that were considered inconsistent with

Anglo-Saxons law, limited colonial state capacity left by default a vast swathe of territories under pre-colonial governance authority. Those in this marginalized realm regarded themselves as subjects of their local chiefdoms rather than citizens of a national state even after the declaration of a protectorate nationwide (Fanthorpe 2001, 2005). Reinforcing this dual notion of citizenship was the introduction of a segregated legal system defined in terms of the distinction between “native” vs. “non-native” and “indigene” vs. “stranger” identities. Land ownership in the interior was based on a communal land tenure system under the custodianship of traditional authorities and strangers from the colony were only allowed to lease such property for a limited number of years. Meanwhile, transaction in the colony was freehold, governed by English property right laws. In terms of governance, parallel authority structures survived mainly because modern institutions were grossly inadequate to take over rural administration.

This is the structural and institutional context in which the modern statebuilding project was to proceed in post-independence Sierra Leone and under various Americo-settler regimes in

Liberia. The modernization agenda in both countries would be presided over by the “new” educated elites who have been exposed to Western law and interested in retaining hegemonic bureaucratic and political institutions left behind by their white counterparts or predecessor settler regimes. At the same time, there are unsettled questions of how to deal with traditional legal systems and authorities which remained relevant to a majority population outside the modern political economy. These pre-colonial systems may pose a challenge for political and

125

economic liberalization processes but they seemed the only viable option for mediating state- society relations in the absence strong decentralized modern institutions. These issues would be pertinent not only to subsequent legal development in both countries but also linked to fundamental political dilemmas regarding the legitimacy of state institutions and establishment of an acceptable social contract with citizens nationwide in the next half-a-century.

Independence: Sons and Nominees of Paramount Chiefs in Power

Initially, the struggle for independence in Sierra Leone was over-shadowed by a colony- protectorate divide based on narrow ethno-regional interests which stymied the mobilization of collective nationalist opposition against colonial rule (Barrows 1976). Worried that democratic elections would tilt the balance of power in favor of the protectorate and leery of the ability of interior elites to take over from colonial rule, the Krios, who are descendants of freed slaves resident in the Freetown colony, wanted a separatist policy rather than independence for the entire country (Collier 1970). Other grievances raised by the Krios included the unequal land tenure system that prevented them from acquiring provincial land and the illegality of allowing

British protected persons representation in the national Legislative Council meant only for

British subjects (Collier 1970; Kup 1975; Wyse 1989).

Meanwhile, deteriorating Anglo-Krio relations meant that the colonial government was now willing to rectify the colony-protectorate power imbalance by allowing traditional rulers ascendancy in national politics (Cartwright 1970). Starting with Governor Ransford Slater (1922-

27), the colonial administration began to recognize the need for protectorate representation in the colony-dominated legislature in proportion to its geographic size and contribution to the

126

economy. The Protectorate Assembly was formed in 1946 as a deliberative body comprising mostly paramount chiefs and designed to advise the government on matters affecting the interior.

Indirectly elected by an electoral college of traditional authorities, most of the protectorate seats were filled by paramount chiefs and this strategy of including traditional rulers in national politics formed the basis of 12 seats reserved for paramount chiefs (1 per district) in the current

Sierra Leone Parliament.

The western-educated protectorate elites wanted to challenge the growing national influence of traditional authorities but they needed an alliance with chiefs to confront the hegemony of the colony. The Protectorate Educational Progressive Union (PEPU), which was originally a pressure group formed by the emerging interior educated class to press for greater representation, later became the Sierra Leone People’s Party (SLPP), the first political party of Sierra Leone with a support base underwritten by chiefs in Mendeland. Moreover, the first cadre of educated protectorate elites were inextricably connected to the institution of chieftaincy by personal and kinship relations that have continued to reinforce itself. The origin of this connection relates to the fact that when Christian missionaries and the colonial government started extending formal education to the protectorate, enrolment in schools was limited to the sons and nominees of paramount chiefs.46 For instance, Sir Milton Margai, the Durham-trained medical doctor who negotiated Sierra Leone’s independence in 1961 and became the country’s First Prime Minister, hailed from a ruling house in the Southern district of Moyamba (Kilson 1966).47

46 For example, when the colonial government founded the Bo School for boys in 1906 as the first secondary school in the protectorate, an official notice announcing its opening stated that the school’s main objective was to educate sons and nominees of paramount chiefs who were expected to take over chiefdom administration from their fathers as literate personnel (Kilson 1966). 47 It must be noted that the Margai ruling house is an example of modern external invention of chieftaincy as this family is one of the ruling houses that gained political ascendancy at the behest of central colonial authorities. This controversy over the legitimacy of ruling houses was a central issue even in the recently concluded 2010 chieftaincy

127

In line with other newly independent African states, the regulation of customary justice systems was an important chiefdom governance issue for the ruling SLPP government under Milton

Margai. The report of the Cox Commission of Inquiry into the causes of the 1955-56 riots against northern traditional rulers was a damning indictment of the repressive rule of chiefs and laxity of administrative control over them. The 1963 Local Court Act was therefore intended “to amend the law related to local courts and to make certain consequential changes for the administration of justice in the provinces” (Local Court Act, No. 20, 1963). A change of nomenclature was effected, re-designating “native court” as “local court” and substituting the term “native” with the word “local.” Among the substantive changes introduced by the Act was an attempt to separate the administrative functions of chiefs from judicial authority by replacing them with court presidents appointed by the government for a period of three years, subject to renewal. Other significant changes included extending the jurisdiction of local courts both in terms of persons subject to its authority and the scope of its applicable laws. Later in 1965, the

Court of the District Commissioner was replaced by a Magistrate Court operated by a qualified lawyer and with wide ranging judicial powers including serving as District Appeal Court. Yet, supervision of internal affairs was to become the prerogative of the Prime Minister through the

Ministry of Internal Affairs which he directed as political head. The local courts were subjected to executive instead of judicial control as their administration was placed under the portfolio of

Internal Affairs with paramount chiefs and tribal authorities continuing to play a role in recommending candidates for the position of court president.

election that pitted the Russell ruling house against the Margais who have occupied chieftaincy in the Moyamba Chiefdom of Lower Banta for more than a century.

128

The Second Prime Minister, Albert Margai, who was an Inner Temple-trained lawyer and took over from his brother in 1964, continued the politicization of chieftaincy with a narrow ethnic dimension that shifted the center of gravity toward the Mende core. Unlike his brother who was cautious to get rid of British and Krio bureaucrats, the more assertive Albert Margai declared in

1965 that paramount chiefs had the right to openly take part in national politics, meaning as it were, party politics. Albert’s policy of appointing his fellow Mende kinsmen in key government posts intensified ethnic polarization much to the disenchantment of northerners and Krios whom his brother had earlier succeeded to appease and accommodate. When the Governor Lightfoot-

Boston declared the opposition All People’s Congress (APC) party winner of the 1967 elections, the Mende-dominated army under the command of Brigadier David Lansana, orchestrated the country’s first military coup to keep their fellow kinsman in power. Indicative of the extent to which chieftaincy had become embroiled in partisan ethnic politics, Brigadier Lansana justified his military takeover on the grounds that the Governor should have waited for the results of paramount chiefs elected to parliament after the closely contested general elections. Likewise, the last counter-coup of Colonel John Bangura, which reinstated Stevens’s exiled APC government in 1968, was plotted by northern elements within the army. These immediate post- independence political upheavals suggested that the colony-protectorate divide in the transition period had been supplanted by a strong ethno-party politics as the greatest obstacle to national cohesion and identity (Sierra Leone TRC, 2005). The battle lines had shifted from purely center- periphery confrontation to ethno-regional realignments with the SLPP maintaining dominance in the south-eastern region while the APC’s strongholds were concentrated in the north and western areas. By the end of the first decade of independence, ethno-regional politics seemed set to continue irrespective of which political party was in power.

129

One-party Rule: Consolidation of Coercive Patronage Politics

Emerging as a brand of populism and anti-elitist struggle, the APC party under Siaka Stevens initially seemed a broad-based political movement capitalizing on peasant grievances against chiefs in the north, poor employment conditions of workers in Freetown, and alienation of Krios by the regime of Albert Margai. However, following his restoration as Prime Minister after three successive military coups in 1967-68, Stevens abandoned his populist ideology in favor of the same exclusionary policies used by the predecessor regimes to consolidate power. Steven’s stranglehold on power took the form of an accelerated policy of Africanizing state administration but this time giving preference to a loose coalition of northern ethnic groups which constituted the core APC leadership (Kandeh 1992). Ethnic politics was based on a patronage system in which the government used public resources to reward a relatively small group of its inner oligarchy and state power to punish outsiders who ventured to express dissatisfaction (Keen

2005). A well-calibrated system often supervised by Stevens himself, the APC government administered rewards to paramount chiefs who accommodated the ruling party while using state coercion to rein in the powers of those who proved intransigent (Keen 2005). Close supervision of the patronage system and accumulation of resources needed to keep the system operational also meant centralization of the extractive, regulative, and distributive instruments of the state. In

1972, the government abolished District Councils and instead set up an interim committee to make recommendations on how their functions and assets should be distributed among government departments against the recommendation of a Local Government Review

130

Committee.48 In that same year, the government ordered closure of the Sierra Leone railway followed by bankruptcy of the Sierra Leone Produce Marketing Board (SLPMB).49

As with the Margais before him, Stevens sought to make up for the lack of social services in the countryside by meddling deeply into chieftaincy affairs and winning the loyalty of paramount chiefs. Since northern chiefs who had been excluded by the Margais had readily aligned themselves with the APC seen as a northern-based party, the central focus of government interference into chieftaincy politics was the southern and eastern regions. The usual strategy was to put at the disposal of opposition ruling houses the Ministry of Internal Affair’s executive authority to challenge the incumbency of ruling families. Dubbed as the “era of chieftaincy petition,” a large number of petitions full of trumped-up charges against chiefs known to have been supporters of the SLPP were filed with the Ministry which in turn would call for commissions of inquiry into allegations. Tangri (1976) cites the example of Koya and Samu chiefdoms where the APC ascendancy to power was accompanied by petitions to government by rival ruling families who had been deprived of power during the SLPP era. In both cases, judicial inquiries put together by the government found incumbents guilty of numerous infractions and ordered their deposition amidst violent clashes between supporters of opposing ruling houses.

Ruling houses that gained power through government support opened the door for APC infiltration into SLPP strongholds absolving the need to depend on rural development performance as incentive to win grassroots support in the countryside.

48 It must be recalled that Steven’s over-centralization policies were in most cases intensification of prior attempts by predecessor regimes. Before their abolishment by Stevens, district councils had been suspended in 1962 by Milton Margai on grounds of alleged financial impropriety. 49 The decision to shut down the railway followed a report by Transport Consultant Incorporated (TCI) and Rendel, Palmer and Tritton of London which found that the transport system was running at a huge deficit. But instead of adopting recommendations to improve efficiency, priority was given to highway road construction. By 1991, the total length of roads in good condition was not more than 160 Kilometers for the entire country (TRC 2005).

131

Notwithstanding his opposition to Albert Margai’s earlier proposal for a one-party system,

Stevens declared Sierra Leone a one-party state in 1978. This declaration of one-party rule was simply a formalization of what had existed in practice since the attainment of Republican status in 1971 which conferred on Stevens the title of Presidency with enormous executive powers. A particularly repressive arm of the state was the highly equipped paramilitary force (even more equipped than the national police and army), the Internal Security Unit (ISU), later transformed into the Special Security Division (SSD). As an instrument of intimidation where patronage and judicial manipulations proved inadequate, the SSD was readily deployed to bring down various opposition forces from urban-based student protests, labor strikes, to uprisings in local chiefdoms. Where imposing a loyal chief was not a feasible option, Stevens would deploy his ruthless paramilitary forces to intimidate into submission recalcitrant chiefs, especially in SLPP- dominated Mendeland. For instance, an ISU hit squad deployed to terrorize local communities of the southern Pujehun district during the 1982 parliamentary elections led to what became known as the worst electoral violence in the country’s political history—the Ndorgboryosoi rebellion.50

Increasing reliance on coercion rather than consent to rule and the quest for personal protection after retirement translated into Steven’s 1985 decision to handpick the head of the Armed Forces,

Major-General J. S. Momoh to succeed him. A northerner from the Limba ethnic group,

50 Although this rebellion was a direct consequence of unwarranted SSD brutality, it is important to underscore that Pujehun District had a well-known history of rebellions emanating from: amalgamation disputes in 1953 over the merger of two chiefdoms into Soro Gbama Chiefdom (the same location of the Ndorgboryosoi rebellion) and another merger into Barri chiefdom in 1975; and an ongoing dispute over the presence of non-native paramount chiefs installed during colonial rule in three strategic chiefdoms. As shall be noted later, it is not surprising, given these numerous unsettled social and political grievances, that Pujehun became one of the launch pads of the civil war in 1991 (Sierra Leone TRC, 2005).

132

Momoh’s inept administration before he was toppled by the military in 1992, was simply a continuation of Steven’s patronage politics centered on a small ruling ethnic mafia from his hometown, Binkolo. Unlike his predecessor though, the IMF structural adjustment program coupled with dwindling rent from the mining sector meant patronage resources for Momoh and his Ekutay ruling cronies were rapidly drying up. Stevens had also plunged the country into a huge debt by extravagantly funding Sierra Leone’s hosting of the 1980 Organization of African

Unity (OAU) Summit. Shortage of patronage largesse to sustain patron-client networks and buy off dissatisfied elements contributed to the outbreak of the March 1991 insurgency and April

1992 coup, both capitalizing on chronic grievances against the ruling patrimonial elite (Reno

1997, 1998). Meanwhile, Liberia was on a similar historical trajectory even as Americo-

Liberians continued to dominate that country’s political and modernization agenda.

The Tubman Era (1944-1971)

Like almost all 18 presidents before him, President William V. S. Tubman (1944-1971) was an

Americo-Liberian. Yet, by hailing from Harper in Cape Palmas, he was the first head of state to emerge from outside the original core settlements of Monteserrado and Grand Bassa Counties and this outside background tremendously impacted his policies regarding internal affairs.

Immediately after he assumed office in 1944, President Tubman launched his National

Unification policy that was aimed at ending intercommunal conflict by removing barriers that prevented indigenous Liberians from being part of the national body politic. The declaration of the unification policy was complemented two years later in 1946 by legislation extending suffrage to property holders in the interior who became eligible to vote and hold elective offices

(Nelson 1985; Sawyer 1992). Also, in order to allow the indigenous elite to participate in central

133

legislative processes, Tubman allotted three seats in the House of Representatives to the interior

(1 seat for each province). Although limited to those who paid hut tax, this extension of suffrage was a fundamental step toward expanding citizenship rights as the previous practice was to consider indigenes as collective subjects of a clan or tribal group to be represented by a single delegate selected by the government.

Another development in settler-indigenous relations during the Tubman era was the building of extensive personal relations and informal networks between the President and traditional rulers.

The linchpin of Tubman’s close association with traditional societies was his regular National

Executive Council meetings which created avenues for him to personally oversee and resolve matters related to the administration of interior affairs. In these meetings, the president always seized the opportunity “to adjudicate criminal and civil claims from the native populations, dismiss corrupt district commissioners, and secure traditional land tenure rights” (Levitt 2005,

188). In a symbolic show of his induction into traditional society, Tubman was declared the

Supreme Zo (ceremonial head) of the male Poro Secret society, a position he had to reconcile with his role as Grand Master of the Masonic Order in Monrovia.51 Given the President’s identification with traditional culture, it became acceptable—even fashionable—for indigenous

Africans who had been assimilated into settler society through the ward system to restore their

African names and for public officials to wear African attire to grace public occasions.

51 While indigenous Liberians had their own secret societies which usually restricted membership to kinsmen, ritualistic and exclusive fraternal orders were not entirely new to Americo-Liberians who were capable of blending fundamentalist Christian beliefs from Deep South of America with practices of freemasonry and membership for men in a Masonic lodge. The only distinction between indigenous secret societies and the Masonic lodges was Masonry’s close association with the True Whig Party (TWG) which gave lodge members exclusive access to unparalleled political and economic power in Liberia (Waugh 2011).

134

Notwithstanding these reforms, competition among ethnic groups for official recognition during the Tubman era exacerbated tribal consciousness of their separate identities (Nelson 1985). For example, while members of the Vai ethnic group were the most willing to take advantage of

Tubman’s policies, the Kru and Grebo ethnic groups which had been in frequent wars with the

Republic, were more circumspect in their response. Crucially, Tubman’s indirect rule system was both highly circumscribed and deceptive in that gradual assimilation of indigenous people into the national community was permitted insofar as it did not unseat or challenge the privileged status of the settler ruling oligarchy. The President was willing to extend political opportunities to the hinterland but without altering the rules that favored the dominance of Americo-Liberians, particularly his ruling clique of family members, Masonic Lodge members, and close associates.

His personal relations with indigenous elites was transformed into a patronage network in which those who relied on his personal influence to attain public office were in turn beholden to become “praise singers” popularising his unification program. Indigenous political representation was to take place only within the framework of the ruling True Whig Party (TWP) dominated by

Americo-Liberian leadership. When the Kru leader of the Reformation Party, Didhwo Twe, sought to challenge Tubman’s third-term bid and to contest the 1951 elections, he was immediately charged with treason and forced into exile in Sierra Leone (Lowenkopf 1976).

In order to stimulate economic growth and improve social services without imposing austerities and heavy taxation upon the prosperous economic class, Tubman implemented an Open Door policy concurrently with his unification program (Nelson 1985). The Open Door policy encouraged foreign firms to invest in Liberia by removing restrictions on repatriation of their profits and guaranteeing unimpeded access to land and natural resources in the interior. The

135

Liberian legislature passed laws that were lax on corporate responsibilities and regulations regarding labor rules and practices (Levitt 2005). With these concessions, there were, by early

1960s, 25 major companies operating in Liberia. However, merchant proprietorship, “organized around a small group of leading citizens and network of trading agents” (Sawyer 1991, 264), remained the natural source of leadership, even with the influx of foreign investors such as

Lebanese businessmen who dominated middle-level commercial activities (Nelson 2985). The

1962 national census revealed that sharp disparity still existed in income and representation between coastal counties and hinterland districts, where the majority population with indigenous background continued to reside.

Further attempts to rectify the inferior political status of the Hinterland came in the form of reorganizing provinces into four counties (Grand Gedeh, Lofa, Nimba, and Bong), each allocated

2 senators plus representatives proportional to their population size. Yet these reforms came too late and were inadequate to challenge the entrenched power base of Americo-Liberians of the coastal counties. Despite ground-breaking efforts to bring the indigenous population into the mainstream socio-economic system, Tubman, like his predecessors, ardently believed in settler supremacist ideology and he laid the foundation for a continuation of Americo-Liberian hegemony. Until his death in office in 1971, Tubman deliberately thwarted any attempt by the indigenous population to take advantage of their numerical strength and rights of origin to destabilize the old guard’s privileged power position—a political system best described as oligarchic democracy.

136

De-Tubmanizing while Repression Continues (1971-1989)

A core member of the True Whig Party and Tubman’s Vice President for 19 years (1952-71), the succeeding President William Tolbert demonstrated contradictory tendencies of reform and continuation of settler oligarchic legacy. Attempting to restructure state administration, Tolbert initially sought to “dismantle Tubman’s extensive patronage network and to replace it with a formal and rational civil service of Tolbert loyalists” (Levitt 2005, 192). In extending the rationalization of administration to internal affairs, the President attempted to abandon Tubman’s informal ties with traditional rulers in favor of more impersonal rules of conduct such as regular elections to the position of chieftaincy, although retaining the powerful position of Supreme Zo.

And to express his government’s commitment to protecting civil rights and free speech, he disbanded the powerful Public Relations Officer system and ordered the release of political prisoners incarcerated by Tubman, including former diplomat Henry Boima Fahnbullah.

Tolbert’s tolerance of civil society led to the emergence of numerous associations, the most influential being the Movement for Justice in Africa (MOJA) founded by Togba Nah Tipoteh and the Progressive Alliances of Liberians (PAL) organized in the US by Gabriel Baccus

Matthews. MOJA, in particular, was a left-wing Pan-Africanist movement based on the

University of Liberia campus and with a leader of an ethnic Kru origin. But it soon became inevitable that these new social forces (the majority being indigenous and settler youth) were headed for a collision course with country’s old guard and its robust oligarchic political culture.

As soon as criticisms of the political establishment began targeting government officials who were close to the presidency and families members with strategic political and economic holdings, Tolbert evoked emergency state powers to suppress the expression of critical opinions.

137

Tolbert’s penchant for repressive rule came to the fore in 1979 when the Progressive People’s

Party (an offshoot of PAL) called a massive demonstration to protest a proposed increase in the price of rice, the country’s staple food. Known as the rice riots, Tolbert’s decision to call in security forces including the military left about 200 people dead, hundreds injured, and resulted in looting of shops and commercial houses by the same security personnel.52 Even though the

Commission on Reconstruction set up after the rice riots recommended scaling back the business interests of his family members and close associates, Tolbert preferred their interest over the masses (Sawyer 1992).

In April 1980, a group of non-commissioned officers of the Liberian army capitalized on these grievances and assassinated President Tolbert in his living quarters of the Executive Mansion.

Led by Master Sergeant Samuel K. Doe, the majority of the 17 coup makers hailed from hinterland ethnic groups such as the Krahn, Dan, and Kru of southern and north-central Liberia.

In what seemed the purging of old guards, 13 key officials of Tolbert’s government were later publicly executed on a beach in Monrovia by a firing squad. At first sight, this coup appeared to signal the end of more than 150 years of settler domination of Liberian politics—the dawn of real

Liberian independence for the majority indigenous population. But while the People’s

Redemption Council (PRC) was composed mainly of indigenous elite, it operated solely on military decrees and Doe himself was “a product of corrupt military culture steeped deep in the crooked fabric of the Liberian oligarchy” (Levitt 2005, 199). As a military junta, his government

52 Reflecting on the history of the Armed Forces of Liberia, the action against civilians should not be surprising. Originally the Liberian Frontier Force (LFF), the primary preoccupation of soldiers had been to suppress indigenous insurrections, enforce law and order in the hinterland, recruit labor, collect taxes and goods from local. In many cases, LFF soldiers were paid from the goods they accumulated from locals. The country’s TRC report (2010) has documented a number of humiliations and suffering of indigenous peoples in the hands of LFF soldiers.

138

did not need popular legitimacy to consolidate power as liberal use of the gun could produce the same outcome (Sawyer 1992). Even when pressure from the Americans forced President Doe to call elections in October 1985, he turned to brute force to manipulate the polls under his National

Democratic Party of Liberia (NDPL). In fact, Doe debarred from contesting the 1985 elections four presidential candidates from the hinterland, thereby effectively shutting down any possibility for the emergence of a formidable indigenous political movement (Harris 2012).

Doe’s regime lacked any clear political ideology or agenda. Since its onset, development efforts were muted by a “strong impulse to satisfy personal greed by raids on the public treasury and private property” (Sawyer 1992, 295). Doe fomented ethnic hatred against the Gio and Mano ethnic groups in the wake of an aborted coup plotted by a Gio descendant—Thomas Quiwonkpa.

The killing of Quiwonkpa was accompanied by a systematic purge of members of the Gios and

Manos (suspected sympathizers) from the military and other state institutions, using brutal extrajudicial means. Members of these two groups were subject to virulent and vicious attacks by the Krahn-dominated Armed Forces of Liberia (AFL), particularly in their homeland of Nimba and Grand Gedeh counties.53 In the meantime, some members of the Mandigo ethnic group were granted privileged access to commercial opportunities protected by the government. As Doe continued to incite ethnic antagonism, the majority of indigenous Liberians became enraged that political power had been appropriated and abused yet again in the name of ethnic differences

(TRC 2010). Whereas ethnic identity had been used by the Americo-Liberian elite to exclude the majority indigenous population from enjoying equal citizenship rights in Liberia, the same

53 This is not the first time residents of Nimba County were being punished by Doe. The AFL had earlier launched a brutal crackdown on the county after cross-border raids from neighboring Guinea targeted the strategically important iron ore facility at Yekepa (Waugh 2011).

139

ethno-political marker now served as the basis to eliminate Doe’s perceived political opponents

(Foster et al. 2009). Yet these disassociations from Doe’s perverse ethnic politics did little to prevent Liberia’s civil war from assuming a crucial ethnic dimension when it broke out in 1989.

Aside from fomenting social grievances which culminated into armed violence, this half-a- century historical period (1950s-90s) also reveals the complex nature of state-society relations in both countries in the following respects. First, it indicates that the sub-national arena remained central to local politics and political stability was inextricably linked to the formation of a loyal local coalition. In fact, this centrality of chieftaincy was the primary focus of the first serious intellectual debate about local governance in post-colonial Sierra Leone. Interpreting the 1955-56 anti-chief riot as indicative of a peasant revolt against the institution of chieftaincy, some saw the main thrust of post-colonial politics as to whether traditional authorities would withstand the progressive forces of modern change (Cartwright 1970; Kilson 1966). At the same time, others drew attention to external interference in dynastic conflicts among ruling houses in local chiefdoms (Barrows 1976; Tangri 1978). Although state coercion was often used to extend formal authority, the historical evidence shows that modernization of local administration did not render chieftaincy obsolete contrary to expectations that modernity would undermine their utility

(Collier 1970). With the advent of the cash economy which transformed chieftaincy into a rich source of power, prestige, and wealth—“the dynamics of local politics were in large measure to be channelled by the rules which govern competition for this institution” (Barrows 1976, 15).

Secondly, the statebuilding project during this period was marred in a series of contradictions.

While attempting to modernize local administration, the intelligentsia continued to rely on

140

informal institutions and patrimonial networks for political and particularistic benefits. The protectorate educated elites in Sierra Leone had close connection with the institution of paramount chieftaincy while Americo-Liberian leaders cultivated informal relations with traditional authorities to legitimize state policies at the local level. As in indirect rule, these engagements were not intended to improve local public services but to build a local ruling coalition to maintain political power. By acquiring the power to appoint and dismiss presidents of local courts, the government in post-colonial Sierra Leone was able to install loyal supporters in those key positions and keep abreast with political situations at the local level (Cartwright

1970). The SLPP’s lack of an organized mass support base coupled with intense party politics introduced just at the eve of independence forced Margai to become increasingly reliant on chiefs’ loyalty to mobilize popular support for the ruling party (Kilson 1966). Describing chiefs as party agents who distributed party cards to their local subjects on behalf of ruling patrons,

Kilson (1966) argues that the politicization of chieftain bodies as a partisan intermediary agency undercut the development of mass-type political parties in Sierra Leone. As this example shows, reliance on traditional authority was counterproductive to statebuilding both in terms of reducing the incentive to establish impersonal administrative institutions and increasing the leverage of local elites to bargain with those at the center.

Finally, as in the period of indirect rule, inadequate formal administrative capacity means that alternative modes of governance continued to be relevant for interpersonal conflict resolution and collective social action. Pre-colonial governance structures had to adapt to changing socioeconomic realities, particularly in response to the unequal extension of the cash economy.

Inasmuch as statebuilding required the regulation of these informal structures, the ineffectiveness

141

of state regulators made them easy prey to powerful local leaders. Similarly, the state’s limited institutional reach suggests that linkages with the center varied considerably depending on accessibility to a region and the position of chiefs in the traditional authority structure. In a study about restatement of customary law in Sierra Leone, Weilenmann (2011) makes an important distinction between paramount chiefs who were keen to stay in touch with political decision- makers in Freetown and their subordinate authorities who remained the principal guardians of the application of local customary law (also Manning 2009). This complex interplay of customary and official state laws was related not only to the causes of war but also the conduct of violence as portrayed in the next section.

The Liberian Civil War (1989-2005)

The 1989 Christmas Eve outbreak of war in Liberia, just as the one that followed in Sierra Leone a year later, could best be described as the cumulative effect of deep-seated political and socioeconomic grievances, notwithstanding the role of diamonds and other natural resources in their prolongation. In addition to those root causes (discussed previously), a number of proximate factors initially coalesced into the armed incursion of about 100 Special Forces of the National

Patriotic Front of Liberia (NPFL) who crossed from neighboring Cote d’Ivoire into Nimba

County under the command of Charles Taylor.54 The Special Forces were drawn mostly from the

Gio and Mano ethnic groups whose members were being persecuted by Doe.55 For these groups, taking up arms was seen as the only option to eliminate Doe together with his Krahn and

54 Some of these initial proximate grievances may have been simply constructed to justify armed incursion and some fighters may have abandoned political and ideological objectives with time. But these factors suffice to understand what triggered the armed rebellion and mobilization of the first batch of insurgents. 55 The people of Nimba had an earlier grievance against Samuel Doe for in 1985 he had denied an indigene of this county an opportunity of becoming Liberia’s president when rigged elections snatched victory from the popular candidate, Jackson Doe.

142

Mandingo supporters and to seize state power for the benefit of their own deprived kinsmen.

Initially, Charles Taylor also appealed to his deposed Americo-Liberian citizens, presenting his military campaign as an opportunity to avenge the 1980 executions of True Whig Party members and his own personal scores against Doe (TRC 2010).56

A particularly distinctive characteristic of the Liberian insurgency was the involvement of numerous factions and splinter groups from the onset. At the level of NPFL’s external support, the Association for Constitutional Democracy in Liberia (ACDL) was fractured by two opposing views between a pro-Taylor camp that included Ellen Johnson-Sirleaf (now President of Liberia) and an Amos Sawyer-led opposing group that abhorred Taylor’s leadership of the NPFL.57 On the battlefield, dispute over who was responsible for an initial blunder in Nimba County resulted in the emergence in July 1990 of a splinter faction, the Independent National Patriotic Front of

Liberia (INPFL) under the command of Prince Johnson. Meanwhile, the brutal murder of Doe on

9 September 1990 was followed by ethnic vendettas and retaliatory killings against members of the Krahn and Mandingo ethnic groups, most of whom fled to neighbouring Sierra Leone and

Guinea.58 While seeking refuge in neighboring countries, a Mandingo Movement for the

Redemption of Muslims (MRM) founded by Alhaji Kromah and a Krahn Liberian United

Defence Forces (LUDF) faction organized by Ambassador Albert Karpeh merged into the United

Liberation Movement for Democracy (ULIMO). Coming together on 29 May 1990 in Guinea,

56 Charles Taylor was appointed by Doe as Director of Liberia’s General Services Agency (GSA) but the two were to latter fallout with Doe requesting the US to issue a warrant of arrest against Taylor on embezzlement charges. 57 Liberia’s TRC published a list of persons subject to public sanctions for their association with and support for former warring factions. Section 14.2 barred financiers and political leaders of different warring factions from holding public office for a period of 30 years and included in the list is the current President Ellen Johnson-Sirleaf. 58 Apart from being viewed as close associates of Doe, the Mandingos became targets for ethnically-motivated attacks because they were seen as foreigners mainly from Guinea who had accumulated unjust wealth in Liberia. Other West Africans came under attack when Charles Taylor expressed his dissatisfaction with all countries contributing troops to ECOMOG.

143

ULIMO was intended to avenge the common persecution members of both ethnic groups had suffered, but a power struggle over command of the combined militia group led to Karpeh’s murder in June 1992. As further leadership conflict over control of Tubmanburg broke out in

1993, ULIMO was dissected into a Krahn ULIMO-J of Roosevelt Johnson and a Mandingo

ULIMO-K of Alhaji G. V. Kromah. Also, the counterinsurgency operation led by elements of the

Armed Forces of Liberia (AFL) mostly targeted civilians of Gio and Mano origin and those suspected of being sympathisers of Taylor.59

The multi-factional nature of the Liberian conflict made earlier peacekeeping operations a particularly daunting and risky task. In a bid to halt a regional destabilization effect of the conflict, the Economic Community of West African States (ECOWAS) launched for the first time an ECOWAS Ceasefire Monitoring Group (ECOMOG) to intervene with a peace enforcement mandate which entailed creating a buffer zone, enforcing a ceasefire, and supporting the interim government. Even before their 24 August 1990 arrival in Monrovia,

Taylor’s NPFL had declared war against ECOMOG as an invading force that would thwart his chances of taking full military control of Liberia. After the collapse of the first unity government, three transitional governments were formed between 1994 and 1996 headed by Prof. David

Kpormakpor, Prof. Wilton Sankawulo, and Madam Ruth Perry whose administration conducted an election won by Taylor in August 1997 under dreadful and dubious circumstances.60

59 Other factions included the Liberian Peace Council (LPC) of George Boley, Lofa Defence Forces under Francis Massaqoi, and the Central Revolutionary Council of Tom Woewiyu. 60 Taylor’s infamous election slogan was: “He killed my Ma, he killed my Pa, I’ll vote for him.” Apart from the cynical expectation that Taylor should enjoy what he had destroyed, NPFL’s military control over most parts of Liberia disadvantaged other factions who contested the elections.

144

Like his settler forefathers did, Taylor also found it expedient to build local networks of power relations in the interior by installing “traditional rulers” who would be loyal to him personally as

Liberia became increasingly polarized along ethnic lines. Forging local loyalties (even if coerced) would allow him easy access to timber, rubber, and other natural resources needed to fuel his military campaign at the same time lending his government a façade of legitimacy. At the symbolic level, Waugh (2011) notes that Taylor’s method of engineering traditionalism ranged from change of names, then appearances, and later beliefs. He replaced McArthur as his middle name with Ghankay, substituted a business suit for traditional attire, and carried around a carved, oxblood-color chieftain stick notwithstanding his Western education and formative years in the US. Having leapfrogged his way through complex initiation processes, Taylor bestowed upon himself the title of Dakhpannah, meaning the overall chief of ethnic groups of Liberia’s interior (Waugh 2011).61 Just as with Tubman and Tolbert preceding him, Taylor had no qualms holding the title of “traditional chief” while concurrently being a member of the Grand Lodge and identifying with Evangelical Christian denominations, if the net effect was generation of political capital where military might would be costly. In one of Taylor’s orchestrated acts to enhance his “supernatural” image, he ordered church pulpits to prophesy a December doomsday in Monrovia only to appear in white robes beside a large Christmas tree during the much anticipated time as the saving messiah of Liberia (Waugh 2011).

61 Other publications have gone as far as accusing Taylor of taking part in ritualistic killings and cannibalism (Ellis 1999). Waugh (2011) argues that ritualistic acts during Liberia’s civil war are not merely the effect of fighters’ intoxication or a terror inducing tactics. For him, the heart of the matter is that those activities had real links with the traditional societal practices of native Liberia including voodoo, witchcraft, black magic, and cannibalism. Apart from the lack of evidence to substantiate these claims (secret society members are usually under oath not to divulge inner society activities), reducing these practices to primitive barbaric culture obscures the politics of their reproduction in contemporary times.

145

In the early 2000s, two new factions with outside support from neighboring countries and the US emerged to challenge NPFL’s despotic rule. The Liberians United for Reconciliation and

Democracy (LURD) launched an incursion from the northwestern front to be later joined by the

Movement for Democracy in Liberia (MODEL) which attacked from the southeastern axis. As tension mounted in what was seen as Liberia’s Second War, US President George Bush urged

Taylor to exit Monrovia before it was too late. When in June 2002 the Special Court for Sierra

Leone indicted the President of Liberia for war crimes, it became clearer that Taylor’s time was fast running out and his role in the country’s political future was now limited. After Taylor went into exile in Nigeria, leaders of the other warring factions assembled in the Ghanaian capital

Accra for peace negotiations under the auspices of President John Kufor who was then Chairman of ECOWAS. The negotiations lasted from June to August 2003, and culminated in a

Comprehensive Peace Agreement (CPA) signed on August 18 to end an almost 15 years of brutal conflict in Liberia. In 2005, UN-supervised elections saw Madam Ellen Johnson-Sirleaf emerging as the first postwar elected President of Liberia.

Sierra Leone: Another Manor River Insurgency (1991-2002)

In March 1991, Charles Taylor made available a group of NPFL fighters to Foday Sankoh of the

Revolutionary United Front (RUF) to launch a similar anti-government war in Sierra Leone beginning from the border districts of Pujehun and Kailahun.62 The incursion into these border

62 There are various accounts as to why Charles Taylor supported Foday Sankoh’s RUF to begin an insurgency in Sierra Leone. Some trace the alliance between the two warlords to their revolutionary training in Benghazi Libya under Mohammad Gadhafi while others see Taylor’s commercial interest in illicit trade of Sierra Leone’s more valuable diamonds as plausible cause. It is also suspected that Taylor was retaliating against the Momoh regime’s support for ECOMOG including allowing the regional force to establish a base in Sierra Leone from where it launched attacks against NPFL’s positions in Liberia. This hostility between the two governments is also used to explain Momoh’s support to ULIMO-J, a Liberian faction formed mostly by Krahn refugees in Sierra Leone to fight against Taylor’s NPFL in Liberia.

146

areas easily found resonance with local grievances and heightened desire for a revolution against the APC ruling oligarchy at the national level. Just across the Manor River Bridge separating

Liberia and southern Sierra Leone, Pujehun was an ideal location to exploit accumulated pre- conflict issues including the presence of non-native ruling houses, unsettled chiefdom amalgamation disputes, lingering grievances over SSD brutality during the Ndorgboryosoi rebellion, and government’s complete neglect of the district despite its lucrative diamond fields at Zimmi. At the onset of war, the district had five amalgamated chiefdoms (among the highest in the country) and the absence of a formal agreement on rotation meant chieftaincy elections were always fiercely contested, leaving local residents polarized with communal vendettas and grudges (TRC 2005). Exacerbating these local feuds was the 1982 SSD paramilitary assault which left residents of an already strong SLPP opposition stronghold aggrieved and local militia of the Ndorgboryosoi group yearning for an opportunity to avenge APC injustice.

According to Sierra Leone’s TRC Report (2005), the majority of RUF fighters that voluntarily joined the group in Pujehun during its formative years were remnant civil militias of the

Ndorgboryosio conflict who called themselves the Joso Group, a derivative name from the pre- war movement. Some of these local militias joined the RUF in Liberia where they had taken refuge since the 1982 APC crackdown on their homeland. Others were part of the growing number of illiterate and unskilled young men of the district already mobilized as “San San Boys”

(Sand Boys) digging illicit diamonds for basic survival. In fact, this narrow local agenda was a source of strained relationship between enlisted NPFL fighters oriented exclusively in broader anti-government goals and Sierra Leonean rebels who bore the character of a civil militia wanting to settle local and inter-personal vendettas as part of the bigger revolutionary struggle.

147

The same local circumstances existed in the neglected eastern district of Kailahun whose border village of Bomaru became the location of the RUF’s very first gunshot (TRC 2005).

While the RUF insurgency was gaining momentum in the countryside, dissatisfied elements of the Sierra Leone Army lead by a 29-year-old Captain Valentine Strasser were orchestrating military takeover in Freetown which successfully ousted the Momoh government on 29 April

1992. Yet in late 1992, the RUF launched an attack on the strategic diamond district of Kono, and rebel control of that area marked a turning point toward greed-motivated violence and the beginning of guerilla warfare. By 1995, the RUF had spread to all districts of Sierra Leone (TRC

2005) swelling its ranks with unemployed and disenchanted youth who had nothing to lose by taking up arms in pursuit of wealth and power. On its part, the military was increasingly losing public confidence both in its ability and sincerity to engage the RUF in combat with pseudonyms such as “sobels” used to depict instances where soldiers and rebels became indistinguishable in their actions.63 In addition to the sheer magnitude to wanton destruction, the Sierra Leone war, just as in Liberia, became an attack on authority structures of both formal and traditional leaders who were “perceived as part of the corrupt and decadent system that insurgents [initially claimed] they want to eradicate” (Alie 2008, 140; TRC Report 2005).

After winning the 1996 elections, the SLPP government made no pretentions about its lack of trust in the national army, going as far as exploring the possibility of disbanding the entire force.

Lack of trust in the military and RUF’s breach of the October 1997 Conakry Agreement precipitated government efforts to organize the Kamajors, which were literally traditional village

63 Some of these situations may have been confused with what the TRC calls “false flag” attacks where RUF fighters would camouflage in military uniforms to make their atrocities appear to have been committed by the SLA.

148

hunters of southeastern origin, into a national Civil Defence Forces (CDF). The Deputy Minister of Defence was Chief Samuel Hinga Norman (also National Coordinator of the CDF) whose perceived partisan support of the Kamajors partly led another military takeover just one year into

Kabbah’s administration. Operating from exile in Guinea, Kabbah was able to convince the

British government to allow the private security company Sandline International to supply arms and ammunition to the CDF which collaborated with a Nigerian-led ECOMOG force to oust

Major Johnny Paul Koroma’s Armed Forces Revolutionary Ruling Council (AFRC) and reinstate the elected government in 1998.

The AFRC’s attempt to reverse constitutional rule only led to further ostracism of the SLA and government’s increasing reliance, rather ironically, on civil militias and other external sources for its own security.64 The government-orchestrated court martial and civilian trials resulted in the execution of 24 soldiers found guilty of treason and incarceration of 16 other SLA rank- holding members under a so-called “safe custody” category.65 As the CDF became an official arm of the state security apparatus, defence spending under Chief Norman was geared almost entirely to providing military equipment and logistical support to local militias to attack not only

RUF rebels but also renegade SLA soldiers. The CDF High Command included President

Kabbah as Commander-in-Chief of pro-Government Forces and the National War Council-in-

Exile which constituted Kabbah’s inner circle was directly aligned with the CDF High

Command. Perhaps in response to accusations of Kamajor atrocities against civilians, a second

CDF War Council was constituted at Base Zero and it comprised influential paramount chiefs

64 After being reinstated, Kabbah hired the services of Executive Outcome, a South African mercenary company to protect the mining district of Kono as the government’s economic mainstay. 65 One of the purported reasons for the 6 January 1999 deadly invasion of Freetown by the RUF and renegade SLA soldiers was to avenge the execution and imprisonment of their comrades.

149

and elders of high standing in local chiefdoms. Initiation processes were conducted by a host of initiators headed by a High Priest, Allieu Kondowah, who claimed the spiritual authority to bestow on new recruits mystic powers to confront rebels and disloyal soldiers.66

Unlike the Liberian war, ethnic identity did not play a prominent role in drawing battle lines and determining composition of warring factions in Sierra Leone. Yet, as the TRC underlines, the conduct and pattern of war were not entirely free of ethno-regional prejudice. Since Foday

Sankoh was a Temne from the north, many Mendes in the southeast where the war started perceived the RUF as an invasion from the northern region just as some northerners believed one of their kinsmen was being used as a scapegoat to destabilize the northern-based APC government (Peterson 2004). The TRC Report confirms that the Kamajors were intensely protective of southeastern territories from infiltration by northerners perceived as supporters of the AFRC junta leader who hailed from the north. There was also suspicion among northerners about what accounted for Chief Norman’s refusal to release arms and ammunition to northern

CDF militias regardless of repeated requests for logistics by the CDF northern commander, M. S.

Dumbuya. The lack of logistics reinforcement to CDF units in the north was partly responsible for that region’s greater vulnerability to RUF/AFRC attacks and its long period under rebel control. On 7 July 1999, the Government of Sierra Leone and RUF signed the final Peace Accord in the Togolese capital Lomé but it was not until 2002 that President Kabbah declared the war completely over.

66 The TRC Report dismisses the activities of Kondowah as fake and perversion of the sacred and long-standing tradition of initiation rites in Sierra Leone. He was however able to make a substantial personal fortune by charging recruits a fee to be initiated into the Kamajor society. And there are accounts of the instrumental role of the traditional Poro society to organize local militia in defence of their communities.

150

Conclusion

In sum, these interrelated historical periods—from colonial indirect rule to civil war—have vividly demonstrated not only the survival of traditional authority in both countries but also the dual nature of their legal, institutional, and governance systems. Since the arrival of settlers and colonialists, statebuilding has been about the relationship between parallel authority structures rather than the conventional Western model of replacing patrimonial loyalty with legal-rational domination. It is undisputable that modern state formation was aimed at extending central authority nationwide, but the history of this process provides the following lessons. Whether institution building or conduct of war, the subnational regional context could not be discounted in each country’s political history. Instead, the institutions and actors at this level seemed the undercurrent holding the modern superstructure known by outsiders as the central state. The civil war reinforced this centrality of subnational politics to the extent that some have attributed its outbreak to abuses perpetrated by traditional authorities. Epitomized by Richards’ (1996, 2005) extensive anthropological research in West Africa, this narrative replicates the post-colonial

Kilson argument by regarding civil wars in the Manor River sub-region as an ‘agrarian rebellion’ against local chiefs (Chauveau & Richards 2008; Maru 2006). Mokuwa et al. (2011) argue that rebel fighters in Sierra Leone staged “a classic peasant revolt aimed not at state power but at smashing and overturning an agrarian world in which landholders had overtaxed young labourers” (363).

The peasant revolt narrative seems to have overstated the liability of traditional authorities and many researchers have questioned the reductionism contained in this narrative (Abdullah 1998;

Fanthorpe 1998, 2001, 2005; Jackson 2005, 2006, 2011; Sawyer 2008). Fanthorpe, who has

151

conducted extensive fieldwork in Sierra Leone, contends that “grievances against customary authority are not in the wartime communique of rebel groups and are often voiced by older, socially integrated villagers who took no part in the conflict” (unpublished report, 6). But the historical record shows that the battle ground was mainly in the countryside and national concerns were often interwoven with unresolved local grievances. Moreover, traditional authorities were implicated in the war both as targets of violence and active participants in its conduct (TRC 2004). When the national army lost public confidence in Sierra Leone, the SLPP government turned to traditional civil militia even for the protection of national interest in the same way that Taylor exploited traditional authority to pursue his insurgency in Liberia.

Linking the civil war to the excesses of patrimonial rule would no doubt put traditional authority under increasing public scrutiny in the period of postwar state reconstruction. Given this widely held perception, there is no doubt that the normative peacebuilding agenda would be intended to subvert the influence of informal institutions—be they particularistic or locally-driven norms.

Rule of law programmers (particularly expatriates) would be interested in capacitating formal justice systems at the expense of informal mechanisms, hoping that the post-conflict state would eventually assume responsibility for providing justice nationwide. Also, Western donors would be more inclined to support a reconstruction agenda designed to institutionalize liberal- democratic values rather than working with pre-existing traditional structures. While the state system equally suffered institutional decay in the pre-war period, restoration of that system may be preferred as the most acceptable option to consolidate peace. In short, what we ought to expect is an enactment of the “statebuilding as peacebuilding” model in both countries, more so as international partners turn their attention to this tragic situation in West Africa.

152

Both as a normative framework and recovery strategy, this peacebuilding agenda is however likely to be accompanied with a number of important drawbacks. There is the likelihood of competing interests and overlapping preferences particularly between external actors and their domestic counterparts. The next chapter will indicate that some national elites are under international pressure to demonstrate their commitment to legal-rational institution building.

Depending on a donor-driven postwar economy, national leaders may acquiesce to donor pressure for an acceptable human rights record and might be sensitive to civil society activism about accountable governance. At the same time, their political survival rests on forging a strong local ruling coalition with traditional authorities who would be restored to their local chiefdoms in the transitional period. The politics of reform would therefore be about crafting a delicate balance between these competing interests and the ultimate cost of translating policy commitment into institutional change would be viewed in political terms unlike rule of law programmers who may devote more attention to the technical costs of reform.

Also, rebuilding the rule of law is likely to raise issues of legitimacy and social relevance in a fashion similar to the challenges that fraught the colonial statebuilding project. Justice sector reform programs may succeed in putting in place legal mechanisms to mitigate abuse of traditional authority and to incentivize the population to seek formal redress. But if the state system lacks credibility, what we shall see is the continued relevance of unofficial justice systems in meeting the conflict resolution needs of people who cannot access formal institutions.

As demonstrated in the subsequent chapters, the relationship between these parallel justice mechanisms will be fundamentally shaped by the traditional authority structure, concentration of state institutions, and the conflict resolution needs and priorities of local residents

153

CHAPTER FOUR Post-war Reconstruction and Justice Sector Reform in the Manor River Basin

Introduction

Both Sierra Leone and Liberia emerged from civil war as multi-ethnic societies in which the majority population live in rural chiefdoms with limited access to social amenities and welfare services provided by the state. These peripheral areas are governed mostly by customary law administered by traditional authorities who assist the state in maintaining law and order while also serving as custodian of communal land, secret societies, and other traditional practices. In addition to administrative roles, traditional chiefs continue to perform extractive and regulatory functions including tax collection and settlement of disputes at the local community level.

Meanwhile, both countries have embarked on an externally-driven liberal peacebuilding agenda which places a premium on building liberal-democratic institutions capable of carrying out core state functions particularly in the areas of justice and security. Building state capacity according to this agenda means inter alia that provision of public services must be based on rule of law and human rights principles as enshrined in national constitutions and international treaties ratified by central governments.

Thus, postwar governments have to demonstrate dual commitment to upholding international rule of law standards and at the same time protecting the interest of a ruling class whose survival often rests on close patrimonial connection with traditional authorities. Since the civil wars in these countries are generally attributed to bad governance and injustices of previous regimes, there is growing internal pressure, especially from civil society groups, for a more inclusive and transparent governance system. This pressure is often stimulated and reinforced by external

154

donors who use their funding and technical support to influence policy and legislative decisions geared towards regulating institutions they consider too illiberal to meet the standards of good governance. Operating a donor-dependent economy constrains national governments to succumb to some of these demands in the same way as enhancing internal revenue mobilization requires opening up the domestic economy through liberalization principles that guarantee property rights. Yet national elites have to balance commitment to institutionalize the rule of law and protection of their local ruling coalition whose support remains vital to their political survival and domestic power base.

This chapter analyzes the political economy of postwar reconstruction that involves multiple actors and often competing interests, focusing specifically on justice sector reform. It examines the tensions that emanate from operationalizing a liberal peacebuilding model in local contexts where the majority of people are governed by customary law and in which domestic politics is linked to traditional institutions such as chieftaincy. This is in line with the first research question which asks: why have customary justice systems thrived in war-torn societies despite efforts to

(re)build the rule of law in those societies? The goal is to understand how the institutional and political contexts shape the reconstruction processes within which customary justice systems evolve and thrive post-conflict. In working towards this goal an important distinction is made between commitment made in formal decision-making and the reality of justice reform at the local political level. The chapter utilizes legislative and policy documents to analyze existing legal frameworks for justice reform complemented by empirical observations and interviews to examine other “drivers of change” beyond formal institutional designs. The first section of this chapter concentrates on the national postwar recovery agenda of both countries in order examine

155

the priorities set by national governments and the incentives underlying certain strategic decisions and actions of the governing class. This is followed by sections on donor-driven justice sector reform to explore the extent to which donor interventions and strategies have been appropriate to meet the justice priorities and needs of people in these war-torn societies.

Kabbah’s Administration: Dual Commitment to Formal and Traditional Authority

Most of the early postwar statebuilding efforts in Sierra Leone took place during the 11-year

SLPP (Sierra Leone People’s Party) rule (1996-2007) under President Tejan Kabbah, who was an example of contemporary African leaders’ ability to combine donor expectation about institution building and the interests of a dominant ruling class. On assuming power, Kabbah represented one of those senior African international bureaucrats whose return to the continent after professional experience abroad in the late 1990s was central to the UN’s response to the political leadership crisis that was evident in some countries just after the Cold War. Considering the reputational problems of homebased autocratic leaders, Kabbah, who had worked for the

UNDP as a Senior Administrator for over 20 years, was by default the favorite candidate for the international community working in war-torn Sierra Leone. But at the same time, his prior experience as District Commissioner in all the three provincial regions of Sierra Leone (1959-

1968) as well as reliance on civil defence forces for security during the war period meant he was not a stranger to traditional institutions, particularly paramount chieftaincy. Although the first

Mandingo and northerner to become a flagbearer of the SLPP, he was heading a party whose major leadership cadre was poised for a southeastern return to national politics after the Mende ethnic group had been denied political power by two decades of APC one-party rule.

156

Throughout his two terms in office, Kabbah’s administration was characterised by a dual and often conflicting commitment to building bureaucratic state institutions while preserving the personal interests of the dominant ruling elite. In line with the international community’s new found concept of good governance that stresses effective state institutions, (re)building formal institutions was high on the national recovery agenda, but that did not mean dismantling traditional structures nor was it accompanied by change in the dominant political culture. This duality was evident from the onset of Kabbah’s postwar National Recovery Strategy (2002-03) which was intended to expand government authority and improve the provision of services countrywide. Despite geared toward building state institutions, part of the strategy was to reinstate native administration such as paramount chiefs and chiefdom functionaries to continue their administrative and conflict resolution roles. The recovery plan recognized chiefdom authorities as “constituting an important component of government that should be provided substantial support in order to effectively perform their functions which included maintenance of law and order, collection and management of local taxes, as well as development at the chiefdom level” (24). The government even went out of its way to convince donors to fund the paramount chief restoration project which made available logistical and technical support to facilitate elections of paramount chiefs in 63 vacant positions, rehabilitate chiefdom administration offices, and build dwelling houses for some paramount chiefs.67

Pillar One of the country’s medium-term Poverty Reduction Strategy Paper (PRSP, 2005-07) expressed the government’s commitment to promoting good governance, peace, and security.

With respect to local governance, it underscored “political decentralization through democratic

67 Most of the 63 chieftaincy positions were rendered vacant during the civil war when their substantive holders fled for safety to Freetown and neighboring countries or died in exile.

157

elections of local councils as key element to open up space for political participation and inclusiveness in decision-making processes” (80). A manifestation of this commitment was the establishment of a Decentralization Secretariat charged with the responsibility of providing technical support to legislative and policy processes leading to the reintroduction of district councils that were abolished in 1972. In 2004, a Local Government Act (LGA) was passed in parliament followed by the first postwar democratic elections for local district and municipal councils. Elected local councils were to become “the highest political authority in the locality and shall have legislative and executive powers responsible generally for promoting the development and welfare of people in the locality” (Part V, 20:1). At the same time, the government made provision for paramount chiefs to be ex-officio members of the local councils and preserved their roles as enforcers of by-laws and custodians of land and customary institutions. While international donors intended to create modern local government structures that were free from the influence of chiefdom authorities, the government was more interested in empowering the institution of paramount chieftaincy (Fanthorpe 2005; Jackson 2005). In defending the President’s 2006 decision to invite Asantehene, the Ashanti Emir of Ghana, to come to Sierra Leone to share his experience and ideas of chieftaincy with his Sierra Leonean counterparts, the Presidential Spokesman, Alhaji Kanji Daramy insisted that:

President Kabbah’s idea is to strengthen paramount chieftaincy. His every word and action about that institution since he became president has been highly positive and supportive. Long before becoming president and a young man in the colonial days, President Kabbah was District Commissioner in all the regions of Sierra Leone. The man is a living institutional memory about paramount chieftaincy and its evolution in all the provinces (Awareness Times Newspaper, 13 September 2006).

This keen interest in strengthening chieftaincy authority was, as during the Margai era, with the political objective of bringing back the SLPP-chieftaincy nexus to use the authority of chiefs to

158

consolidate power of the ruling party and governing elites (Bering 2010). Paramount chiefs continued to be salaried (however meagre or irregular) officials of the government, supervised and controlled by the Ministry of Local Government. Section 72 (1) of the 1991 National

Constitution states that “the institution of chieftaincy as established by customary law and usage and its non-abolition by legislation is hereby guaranteed and preserved”. Whereas the 1991

Constitution contained entrenched clauses that protect the institution of paramount chieftaincy, there was little debate, throughout Kabbah’s tenure, to remove paramount chiefs from parliament so they could become more independent from partisan politics. Instead, in the absence of any specific law regarding the conduct of paramount chieftaincy elections, the government became directly involved in setting the rules and organizing postwar elections for filling more than 70 vacant chieftaincy positions, often leading to serious tension between the Office of the President and the National Electoral Commission (NEC).68 Tensions over who should conduct paramount chieftaincy elections and whether such electoral processes fell within the category of “public elections” intensified during the 2006 election in Biriwa chiefdom of the northern district of

Bombali. This controversial Biriwa chieftaincy election was not only a vivid indication of government interference in chieftaincy politics but a reminder that chieftaincy disputes can potentially undermine peace and stability at the local level.69

68 See Government Statement on the Conduct of Paramount Chieftaincy Elections, released by the Office of the President on 6th November 2002. Also, Guidelines for the Election of Paramount Chiefs by the Ministry of Local Government and Rural Development, April 2005. Statements released by the Office of the President insisted that paramount chieftaincy election was not a public election to be conducted by the NEC and therefore the conduct of the Biriwa election by the Ministry of Local Government was not in contravention of Section 33 of the National Constitution. These statements were later supported by a Supreme Court ruling delivered on 10 November 2006 which struck down a petition by the boycotting Conteh ruling house against the constitutionality of the election and eligibility of the Sheriff family to paramount chieftaincy election in Biriwa. 69 A press release by NEC on 14 August 2006 stated that the Commission was forced by State House officials to hand over electoral materials to the Ministry of Local Government after the Chief Commissioner had stressed that the prevailing circumstances would not permit the conduct of a free and fair election in Biriwa (See “Paramount Chieftaincy Elections in Biriwa Chiefdom,” Awareness Times, 14 August 2006).

159

The political rationale behind empowering chieftaincy became increasing evident as the ruling

SLPP establishment began facing formidable opposition both from within the party and from the northern-based APC party during Kabbah’s second term. The 2004 Local Council Elections, which were a landslide victory for the opposition APC party in the northern and Western regions, was a warning that the SLPP needed to step up efforts to strengthen its local support base. In

March 2006, President Kabbah undertook a nine-day tour of the provinces during which he officially crowned newly elected paramount chiefs, particularly in the swing district of Kono

(Awareness Times, 20 March 2006). In the following month of April, the Vice President

Solomon Berewa who was to become the next SLPP presidential candidate, addressed a conference of paramount chiefs at the centenary celebration of the Bo School.70 In his statement, the Vice President reaffirmed that “Sierra Leoneans still value traditional rulers and that the

President has great respect for the institution of chieftaincy” (Awareness Times, 19 April 2006).

That same year many cash donations and grants were made available to paramount chiefs in the name of development, including the Vice President’s distribution of over 90 million Leones to diamond mining chiefdoms and the President’s provision of 7 Million Leones to each paramount chief and Tribal Head in the western area to fight HIV/AIDS in their localities (Awareness

Times, 24 April 2006).

As in the post-independence Margai era, the SLPP-chieftaincy nexus was reciprocal with the government using its authority to protect paramount chiefs in return for votes in local chiefdoms

70 As the Durbar coincided with the centenary celebration of the Bo School, Vice President Berewa reminded his audience that when the colonial government founded the school it was intended to educate sons and nominees of paramount chiefs who would go back to their respective chiefdoms to assume leadership positions.

160

where the majority of citizens resided.71 In his numerous campaign tours to mobilize the electorate for his 2007 presidential bid, paramount chiefs hailed Solomon Berewa as the rightful candidate to succeed Kabbah. In reacting to Berewa’s frequent meetings with paramount chiefs in which traditional leaders pledged their support and solidarity to his candidacy, the APC challenger, Hon. Ernest Bai Koroma, accused the SLPP of surreptitiously manipulating the institution of chieftaincy in order to win the 2007 elections (Awareness Times, 3 August 2006).

In a related incident, the NEC District Commissioner in Kono had to convene a stakeholder meeting to address a letter of complaint by the APC accusing a section chief of Tankoro chiefdom of preventing the opposition from campaigning in his locality. In the face of mounting accusations that chiefs were compromising the integrity of chieftaincy by campaigning for the ruling party, the SLPP National Secretary-General, Jocob J. Saffa, made no pretence in backing chiefs who acted in the interest of his party. He stated that preventing chiefs from openly participating in partisan politics was an infringement upon their rights under the national constitution and international human rights law. He noted that for chiefs to declare support for the SLPP was a show of appreciation to the party for what its government has done and will continue to do for them (Awareness Times, 9 August 2006).

This reciprocal relationship between the ruling party and paramount chiefs also explains in part why Charles Margai, leader of the breakaway opposition People’s Movement for Democratic

Change (PMDC) party, was rather unpopular among traditional rulers. In an unprecedented departure from the position of his uncle and father (1st and 2nd Prime Ministers of Sierra Leone),

Charles Margai had in 2003 signalled his intention to radically reform the institution of

71 According to Statistics Sierra Leone, 80% of citizens live in local chiefdoms under the authority of chiefs (Statistics Sierra Leone, 2004 Census).

161

paramount chieftaincy if elected president of Sierra Leone. Many paramount chiefs saw Margai’s statement as a direct threat to their authority and vowed to oppose his political ambition of becoming president. When Margai broke away from the SLPP in the party’s pre-election delegate conference, it was clear that his new PMDC party would hardly attract the support of chiefs. The SLPP wasted no time in capitalizing on this backlash from traditional authorities by reaffirming the party’s long-standing tradition of top down reciprocal obligation to chiefs, although the party lost the 2007 election to the main opposition APC party (Bering 2010).

Koroma’s Natural Resource Boom: Running the Country Like a Private Business

President Koroma, an experienced insurance broker and businessman, took over government in

2007 with a manifesto of economic transformation based mainly on private sector-led economic growth. The APC government’s 2008 Agenda for Change aimed at achieving an annual growth rate of 10% through substantial investments in supportive infrastructure, improved delivery of social services, and private sector development. The Agenda focused on four key priorities, namely, provision of reliable power supply, raising quality and value-added productivity in agriculture, development of a national transportation network, and provision of improved social services. Principles of good governance and rule of law were to underpin the achievement of these goals insofar as they promoted macroeconomic stability and strengthened the legal and regulatory framework necessary for investment. Succeeding the Agenda for Change was a long- term roadmap for transforming Sierra Leone into a middle income country by 2035, the Agenda for Prosperity. The first five years of this prosperity agenda (2013-2018) was “to build a stable economy, founded on private sector-led growth, and diversified across several competitive sectors to achieve [the country’s] economic and human development vision” (3).

162

With support from international financial institutions and bilateral donors, the Koroma administration aggressively pursued this Agenda for Prosperity by attracting massive foreign direct investments from multinational corporations interested in the country’s mineral resources and fertile land (Human Rights Watch 2014). The government adopted an Open Door policy which offered a wide range of generous fiscal incentives to potential investors including a 10- year corporate tax holiday, zero- import duty for agricultural investment, exclusive foreign ownership in all sectors, no limits on expatriate employees, as well as full repatriation of profits, dividends, and royalties (NMJD & Cord Aid 2013). Through technical support from the

International Financial Corporation (IFC), the World Bank’s private sector arm, the Sierra Leone

Investment and Export Promotion Agency (SLIEPA) advertised Sierra Leone as a prime location for agribusiness, highlighting the country’s tropical climate and rich soil, relatively low rural labor rates compared to other developing countries, and a communal land tenure system which could be mediated by government to make land easily available for long-term lease.

Additionally, the government was committed to a land reform process aimed at privatization of land ownership throughout the country and a policy framework to remove barriers in accessing communal lands for large-scale commercial investment.

A recent study on land deals and investment in Sierra Leone reveals that close to 500,000 hectares of farmland had been leased or were under negotiation for lease in Sierra Leone (The

Oakland Institute, 2011). Most of the land deals were geared toward making available communal lands for large-scale industrial cultivation of sugarcane, palm oil, and other cash crops. For example, the government’s flagship large-scale land deal with Addax Bioenergy Sierra Leone

Ltd granted the company 20,000 hectares of land to grow sugarcane for ethanol export for a lease

163

period of 50 years with a probable extension of 21 years. Apart from agribusiness, the mining and other extractive sectors continued to be exploited for diamonds, iron ore, rutile, bauxite, gold, and timber exports. In 2013, Sierra Leone’s GDP economic growth was approximately

20%, the fastest in sub-Saharan Africa at the time, according to the IMF. Between 2009 and

2012, the value of natural resource exports exceeded $1.2 billion, accounting for about 70% of the country’s exports while inward FDI flows amounted to $579.1 million in 2013 (Herbert

Smith Freehills et al. 2015). Although iron ore extraction which commenced in 2011 accounted largely for the significant growth in GDP during this period, diamond mining continued to play a substantial role as over 600,000 carats worth of diamond were exported in 2013 alone. Looking

East, China invested heavily in the country’s physical infrastructure including the construction of tarmac roads and a 124-mile railway track solely for the purpose of transporting iron ore from a northern mining enclave to the coast for export.

However, as evident in the recent Ebola outbreak, this massive economic growth has not translated in socioeconomic development such as improved service delivery in the area of healthcare and a better standard of living for the majority population. In 2013, the UNDP Human

Development Index ranked Sierra Leone 183rd out of 187 countries assessed on multiple indicators of development. Life expectancy at birth stood at 45.6 years which is below the sub-

Saharan average of 56.8 years and more than 50% of the population subsisted below the poverty line of $1.25 per day. There is a bourgeoning number of studies whose findings show that the country’s postwar natural resource boom has disproportionately benefitted a small economic class in collusion with the ruling elite at the expense of the masses whose land and labor were being exploited. Some of these reports even note that the living conditions of people directly

164

affected by large-scale agricultural and mining activities were better-off prior to the economic boom.72 While the World Bank estimated that unemployment stood at 60%, the Comprehensive

Food Security and Vulnerability Analysis found in 2011 that 45% of households are food insecure, especially during the lean season.

Meanwhile, chiefs continue to hold land in trust for their people with the understanding that indigenous communities were entitled to the surface of communal land while the minerals underneath belong to the state (Human Rights Watch 2014). In order to get access to the minerals below a depth of 6ft. mining companies pay surface rent to local communities through their traditional authorities. The 2007 Mines and Minerals Act stipulated how surface rent should be distributed: displaced landowners (50%), local district councils (15%), paramount chiefs

(15%), chiefdom administration (10%), and constituency development fund (10%). Based on the number of licences issued to artisanal miners, chiefdom councils are also entitled to a Diamond

Area Community Development Fund (DACDF) to be utilized for community development projects in local chiefdoms. Jointly administered by the Ministries of Mineral Resources and

Local Government, DACDF is one-quarter of the 3% tax levied on the value of artisanal diamonds exported from Sierra Leone.

72 Examples of recent studies include: Human Rights Watch, Whose Development? Human Rights Abuses in Sierra Leone’s Mining Boom (February 2014): Network Movement for Justice and Development (NMJD) and Cord Aid, Land Rights Project: The Social, Economic, Political, Environmental, and Cultural Impact of Large-scale Land Investment in Sierra Leone (July, 2013); The Oakland Institute, Understanding Land Investment in Africa: Country Report of Sierra Leone (2011); NMJD, Cost-Benefit Review of the Iron Ore Mining Agreement between the Government of Sierra Leone and African Minerals Limited (May 2011); NMJD, Dancing with the Chameleon: Mining Communities in Sierra Leone and the many Faces of Frank Timis, Focus on Mining Companies Series No. 2 (June 2010).

165

On 18 April, 2011, President Koroma presented a new staff of office to paramount chiefs in a national Durbar of Chiefs held in the southern headquarter town of Bo. Unlike the first chieftain staff which had the crest of the colonial Queen Victoria II, the new staff has the coat of arms of

Sierra Leone as its symbol of authority. In addition, paramount chiefs were for the first time offered a medallion of office which could be worn to attend formal functions. The ceremony was seen as significant especially as some chiefs had lost their staff during the war period and it symbolically indicated that the APC government was committed to restoring the dignity and respect of traditional rulers. In addressing paramount chiefs, the President invited them to be an integral part of the process of building a modern democratic government. He described chiefs as

“being part of progressive development for a long time” and urged them “to continue that path in order to confound the critics who say chiefs are mainly concerned about courts, fines, and taxes”

(Sierra Express Media, 21 April 2011). The President also noted that “tradition does move forward with times” and paramount chieftaincy “should be recognized as an institution of the modern state of Sierra Leone” (ibid). This dual commitment to developing a modern economy while maintaining traditional authorities as custodians of land and other local resources is evident in the postwar administration of neighboring Liberia as well.

Johnson-Sirleaf Administration: Another International Favourite in Power

The first post-war Presidential election of Liberia (October 2005) was won by Madam Ellen

Johnson-Sirleaf, a Harvard-trained economist and former official of the UN and World Bank. It was under the leadership of Johnson-Sirleaf, who returned to the country with enormous international backing, that Liberia’s immediate postwar recovery agenda would be implemented.

Taking over from the National Transitional Government of Chairman Gyude Bryant, President

166

Sirleaf wasted no time to inaugurate her 150 days’ rapid impact project aimed at making the post-conflict state quickly visible in four priority areas: security, economic revitalization, basic services and infrastructure, and good governance. These same pillars continued to define her administration’s medium to long-term development strategy under the supervision of the

Liberian Reconstruction and Development Committee (LRDC). Based on significant improvement in public finance and monetary policies including membership of the Extractive

Industries Transparency International (EITI), the IMF restored normal relations with Liberia in

Mach 2008 paving the way for the country’s Poverty Reduction Strategy (PRS), the roadmap for medium term socioeconomic recovery.

Dubbed Lift Liberia PRS, Pillar 2 of the recovery strategy focused on revitalizing the economy by reopening the forestry and mining sectors which had literally halted production due to war and UN sanctions.73 Specifically, the goal was to “restore production in rubber, timber, mining, cash crops, and other key natural resources and ensure the benefits accrue to the nation as a whole and not just a few” (PRS 2008, 38). President Sirleaf’s decision to cancel and review all logging concessions signed under the transitional government and the creation of the Forestry

Reform Monitoring Committee (FRMC) prompted the UN Security Council in June 2006 to lift the international ban on Liberian timber export. Major concessionary contracts that were renegotiated including those with Netherland-based Mittal Steel Company and Firestone whose original concession agreements dated back to 1926. As Liberia continued to attract other leading global firms into its forestry, mining, and rubber sectors, exports increased from $175 million in

2006 to $299.2 million in 2011 (Ministry of Planning and Economic Affairs, 2012). Outside the

73 In 2003, the UN Security Council passed Resolution 1521 which imposed a ban on the export of timber and mineral resources so as to prevent warlords from using those resources to finance their war.

167

traditional resource sectors, a substantial proportion of the 2012 estimated $16 billion FDI went into tree crop plantation, particularly oil palm.

As palm oil becomes a booming business with almost 60 million tonnes of world production in

2014, Liberia and Sierra Leone are among the African countries that have become the new frontier for large-scale palm oil plantations in the face of land shortages in Asian countries like

Indonesia and Malaysia.74 Global Witness (2015) estimates that a total 1,086,110 hectares of

Liberian land has been contracted to multinational companies for plantation purposes. For instance, in 2010, the government signed a contract with Golden Veroleum (GVL), a subsidiary of Golden Agric-Resources (GAR), the world’s second largest producer of palm oil. GVL’s concession contract makes available an area of interest covering 350,000 hectares within which the company is allowed to convert 260,000 hectares into an oil palm estate. The agreement is valid for 65 years with an opportunity for a 33-year extension period. Other prominent plantation companies include Sime Darby Plantation Inc. whose estate covers 260,000 hectares, Liberian

Agricultural Company with an estate of 210,332 hectares, and Equatorial Palm Oil Plc operating on 185,669 hectares (Global Witness 2015).

In the absence of clearly defined land rights policy, the government established a national Land

Commission mandated to coordinate reforms of land laws and programs in Liberia. Established by an Act of the Legislature in August 2009, the Commission was to promote equitable and productive access to the nation’s land in addition to ensuring the rule of law with respect to

74 Palm oil is used for biofuel and as an ingredient in many foods and cosmetics. Many popular products from Starbucks, McDonalds, Unilever, and L’Oreal contain palm oil. The largest consumers of palm oil are India and the EU followed by China and the US (Global Witness 2015).

168

landholding so as to promote investment. Concurrently, a Forestry Development Authority

(FDA) was created to allocate and manage Liberia’s 4.39 million hectares of forest as either forest management contract areas, timber sales contract areas, community management areas, or protected areas to capture and develop the country’s wide range of forest resource benefits (SIIB

Report, 2012). Private Use Permits (PUPs) was one of the licences to be issued by FDA to allow private landowners to utilize commercially viable forest assets situated on their property. “A sudden explosion in the use of PUPs saw over 40% of Liberia’s forest granted to logging companies in just two years, making the permits the main source of commercial timber in

Liberia” (Global Witness 2013, 16). A particularly notorious practice was to use forged and irregular land deeds to apply for PUPs and as of 2012 FDA had issued 63 permits, totalling

2,532,501 hectares of the land area of Liberia.

Being a Development Economist by training, the corner stone of President Sirleaf’s socioeconomic recovery strategy was private sector-driven growth, supported by public sector action aimed at strengthening market functions (PRS, 2008). “Apart from providing the conducive infrastructural environment for business to thrive,” the government introduced

“regulatory policies that facilitated the expansion and functioning of markets” (PRS 2008, 60). In other words, more direct state interventions were limited and time-bound with clear exit strategies so as not to adversely interfere with the market mechanism necessary for GDP growth which rose to 9.3% in 2014 (World Bank, 2004). This strategy was to be carried forward into the

Agenda for Transformation (AfT), a five-year development plan (2012-2017) to position Liberia for becoming a middle income country by 2030. But like Sierra Leone, Liberia continues to be at the bottom of the Human Development Index, being 175th out of 187 countries sampled in 2013.

169

Life expectancy at birth increased substantially to 60.6 years compared to Sierra Leone (45.6 years) and the sub-Saharan average of 56.8 years. However, the devastating toll of the 2014

Ebola outbreak clearly revealed that, like neighbouring Sierra Leone, the revenues generated from Liberia’s vast agricultural and extractive sectors have not been adequately translated into improved social amenities for the country’s majority citizens. According to UNICEF, the total adult literacy rate in Liberia between 2008 and 2012 is 42.9%.

Considering nearly a century of True Whig Party dominance of Liberia’s political history coupled with a decade of military rule that preceded its civil war, party politics mediated by ethno-regional affiliation is not as intense as in Sierra Leone. Of the current major political parties in Liberia, the oldest is the ruling Unity Party of President Sirleaf which was formed in

1984 to contest the 1985 elections against then-President Doe. The main opposition Congress for

Democratic Change (CDC) is a relatively new political party formed by supporters of footballer

George Weah’s 2005 Presidential candidacy. But as in Sierra Leone, President Sirleaf needed to extend her ruling coalition to rural elites who maintain influential control over local resources and votes in the absence of an organized party base at the local level. The National Traditional

Council is an officially recognized “autonomous” body with an allotment in the national budget of $ 740, 000 in the 2014/15 fiscal year, doubling the previous year’s allocation. In a statement marking the formal opening of the Council’s headquarters in July 2009, President Sirleaf paid tribute to the traditional leaders describing them as the “unifying strength of Liberia” (Executive

Mansion of Liberia, 2009). On 22 August 2012, the President signed a bill creating the National

Council of Chiefs and Elders to demonstrate her government’s “recognition of the dignity of

170

traditional authorities” and commitment to incorporate them as “part of the decentralization program” (Executive Mansion 2012).

Like in Sierra Leone, this postwar recovery agenda of Liberia demonstrates that national governments have always professed commitment to a good governance strategy for inclusive political processes leading to socioeconomic transformation. However, political decision-making remains dominated by a small class of ruling elites whose entrenched economic interests may align with the global capital but not necessarily with the priorities, aspirations, and needs of majority people living in rural areas. Kandeh (2011) refers to this fundamental problem as restoring the post-conflict state in its previous form instead of transforming it in ways that make elites’ mode of accumulation consistent with development aspirations contained in national recovery agendas. Restoring the state in its pre-conflict form means that expansion of state authority is often a projection of the political imperatives of ruling elites or ruling parties into areas otherwise governed by non-state mechanisms. These ruling coalitions continue to be based on previous ethno-regional identity politics but is beginning to shift to strategic alignment with others whose economic and social capital can be converted into consolidating or expanding the power base of political parties. Thus, while increases in GDP and growth rates indicate economic boom, such changes disproportionately benefit those with powerful connection with the ruling class with little or slow redistribution effect. The land, mineral resources, and labor needed to stimulate economic growth are located in peripheral areas but decisions about distributing the benefits of economic exploitation continues to be highly centralized and concentrated at the decision-making center.

171

Moreover, although the institution of paramount chieftaincy was implicated in social grievances leading to civil war in both countries, this institution has survived through the war period and is critical to the politics of postwar reconstruction. The political economy of postwar recovery has only succeeded in reinforcing the patronage networks that link ruling elites at the center with their sub-national counterparts, particularly paramount chiefs. Paramount chiefs are strategic local partners because they continue to be gatekeepers of rural land, labor, and votes—resources that have become increasingly important as elections become an acceptable mechanism of leadership turnover and as the domestic economy opens up to global capital. Since most political parties lack coherent ideological positions and decentralized grassroots party organization to mobilize voters, the geopolitical authority traditional rulers provide is a strategic tool to access the electorate in local chiefdoms during election periods. What this means though is that rewarding traditional authorities for their role in mobilizing votes has become a disincentive for developing stronger party organizations and for building a state-society social contract based on performance legitimacy. Therefore, apart from a few infrastructural projects leading to enclaves where natural resources are available, ruling parties often fail to prioritize rural development in their ethno-regional strongholds.

The same linkages between central and local elites dominate the production, extraction, and transfer of local resources from peripheral areas to the capitalist core. As custodians of communal land and traditional institutions, paramount chiefs serve as interlocutors between the central government and their subjects whenever implementation of a national development agenda requires access to labor and resources at the local level. It is expected that paramount chiefs would hold communal land in trust of their people to prevent strangers (outsiders) from

172

encroaching on customary property rights at the expense of communal interest. Yet where the material interests of central elites, local chiefs, and global capitalists are in alignment, customary rights would give way to those at the center in the name of national development. Paramount chiefs are obliged to support national projects if their appointment and continuation in office is at the behest of the central governing class. Also their role in maintaining law and order in local chiefdoms and distributing employment opportunities brought by external investments empowers chiefs to mediate local grievances so as to prevent mass rural mobilization against corporate interest. As traditional authorities assume an increasingly crucial role in the postwar political economy, the position of chieftaincy becomes highly competitive which in turn increases the cost of contesting and winning a chieftaincy election. But while traditional authorities undergo the financial expenses for obtaining chieftaincy titles, they are no longer entitled to tributes, free labor, and fees generated from customary courts. Also, traditional authorities are poorly remunerated: the salaries of senior chiefs (paramount chiefs and their speakers) are grossly irregular and their sub-chiefs are not on payroll.

Finally, it must be noted that protection of narrow elite interest in the post-conflict era is not merely a continuation of prewar patronage politics. Unlike the first generation nationalist leaders, the current cadre or group of national elites are exposed to the principles of good governance and may not necessarily be ideologically opposed to liberal-democratic values. They are also cognizance of mounting human rights awareness in the post-conflict environment and pressure from external partners for a rights-based approach to governance. Similarly, traditional authorities at the upper hierarchy of chieftaincy are well-educated, some with considerable professional experience in the bureaucracy, civil society organizations, or even human rights

173

activism. Others have spent a considerable time living and/or working abroad and returned home only to contest the position of paramount chieftaincy. For these contemporary leaders, politics is mainly about holding a delicate balance between opening domestic political institutions to modern democratic standards and preserving the interest of their ruling coalition. Often consideration about whether to reform traditional institutions is not so much about preserving customs and culture as about the political costs of introducing certain changes. When pressure from external partners and civil society organizations mounts, the governing elites are forced to undertake certain legislative and policy changes which result in formal institutional rearrangement in line with good governance principles. However, translating policy-on-paper into reform reality depends on the extent of political costs such as losing the support of traditional rulers: higher cost means a wider gap between the promulgation of formal rules and their implementation.

In summary, this is the current local context in which external donors have supported a liberal peacebuilding agenda in Sierra Leone and Liberia. This context is a product of both postwar reconstruction as well as historical and political forces that have shaped the statebuilding project since colonial rule. But as we shall see in the next section, most of the donor interventions were intended to restore law and order in war-torn societies. But unfortunately, little or no systematic analysis of the postwar political economy was undertaken to understand drivers of change beyond formal-legal state institutions before international peacebuilders went into these countries. The dominance of international legal professionals and other expatriates particularly in rule of law programming meant that peacebuilders were either unable or unwilling to transcend narrow technocracy to grapple with the political history of pre-existing institutions to know

174

where these structures come from and why they operate the way they do. Part of the problem is simply the lack of time to undertake rigorous historical and cultural analysis while responding to the exigencies of postwar transition and reporting back to funders in home countries in a timely fashion. Beyond the question of time though, the difficulties of adapting a normative liberal peacebuilding agenda to suit complex local realities relates to ideological fixation on state, conservative bureaucratic culture of funding agencies, and sometimes an arrogant tendency to shun local knowledge, authority, and mode of collective action.

Failure to pay attention to complex structural realities often means that institutions (re)built by donors are captured by the ruling class for the advancement of narrow partisan or elite interests at the expense of purported beneficiaries. And where peacebuilders attempted to deal with or acknowledge the political implications of their intervention, superficial understanding of the local context makes them fall prey to the nuances of primitive domestic political processes.

Instead of genuine transformation of the structural and political conditions that privilege the minority elite class, institutionalizing the rule of law has usually ended up reinforcing those structural inequalities including exclusion, marginalization, and alienation. Nowhere is the contradiction more apparent than in justice sector reform in which donors focus more attention in supporting the state to deliver justice rather than supporting citizens to access justice. Although the goal for justice reform has always been to make the forum of redress affordable and accessible to vulnerable populations, the approach focuses almost exclusively on the formal justice sector.

175

Sierra Leone Justice Sector Reform Program

International presence has been central to ending civil war and restoring state authority in Sierra

Leone and Liberia (International Crisis Group 2004). The UN often cites its missions to both countries as a model for successful peacekeeping operation as well as a prototype for the organization’s new emphasis on post-conflict peacebuilding (Dyck 2013; Kandeh 2011).75 Apart from the conventional peacekeeping activities such as monitoring ceasefire agreements and disarming thousands of ex-fighters, UN missions became increasingly instrumental in expanding formal state authority and establishing constitutional order through institutional reforms. The civilian components of these missions have actively supported postwar governments in expanding national justice and security services through capacity building, education, and training.

Legal and judicial support divisions of UN agencies have been active in providing technical legal advice to the judiciary, rebuilding national police forces, and raising public awareness on human rights and gender equality issues. Particularly in the case of Sierra Leone, efforts to assist the government in consolidating peace has continued after final withdrawal of the UN peacekeeping mission through funding support from the UN Peacebuilding Commission. Other UN agencies have collaborated with bilateral donors and other multilateral organizations to support state prosecutors, build the infrastructure and operational capacity of justice institutions to address

75 UN Security Council Resolution 1181 of 13 July 1998 authorized the formation of United Nations Observer Mission in Sierra Leone (UNOMSIL) while Resolution 1270 of 22 October 1999 led to the establishment of United Nations Mission in Sierra Leone (UNAMSIL) as a larger mission with a broader mandate. Since the renewal of its peacekeeping mission in Sierra Leone in 1999, the Security Council has passed about 15 successive resolutions expanding the mandate of UNAMSIL and extending the duration of its field mission. For Liberia, the September 2003 UN Security Council Resolution 1509 established the United Nations Mission in Liberia (UNMIL) mandated to take over from and subsume the ECOWAS Interposition Force in Liberia (ECOMIL).

176

justice delays, and to establish human rights commissions (Castillejo 2009). International attention on security and justice reform is warranted not only because much of the physical infrastructure was destroyed by conflict but also because these central state institutions had been grossly politicized during the pre-conflict years (International Crisis Group 2004).

However, in terms of establishing a broader justice sector reform strategy, donor supports were spearheaded by each country’s long-standing bilateral partner. In Sierra Leone, British intervention coincided with the formulation of the UK’s new Conflict Prevention Pools (CPPs), announced by Her Majesty’s Government in April 2001 as a joint mechanism for managing

British overseas contribution toward violent conflict prevention and reduction.76 CPPs brought together the interests, expertise, and resources of the UK’s Foreign and Commonwealth Office

(FCO), Ministry of Defence (MOD), and DFID for greater effectiveness; the African Conflict

Prevention Pool (ACPP) was to cover sub-Saharan Africa. Under the ACPP, the UK allocated 25 million Pounds to Security Sector Reform in Sierra Leone aimed at creating effective, affordable, and democratically accountable security agencies that are able to counter internal and external security threats in the transitional period.77 While the International Military Advisory and

Training Team (IMATT) was in charge military reform, the Commonwealth Community Safety and Security Project (CCSSP) was geared toward enhancing the professional capacity of the

Sierra Leone Police with British-born Keith Biddle as the country’s first postwar Inspector-

General.

76 In addition to the UK and UN missions, there are other donors in Sierra Leone. At the multilateral, other organizations include the UNDP, World Bank (Justice for the Poor Project), European Union, UNICEF, International Rescue Committee (IRC) etc. while among other bilateral agencies are Irish Aid, and the German Technical Cooperation (GIZ). 77 See Jeremy Ginifer and Kaye Oliver, Evaluation of the Conflict Prevention Pools: Country Case Study of Sierra Leone. Prepared for the Department for International Development, March 2004.

177

Moving from postwar emergency to a coherent and integrated justice sector-wide strategy, DFID launched a Justice Sector Development Program (JSDP) that incorporated elements of both the

CCSSP and an earlier Law Development Program in Sierra Leone. With a duration lasting from

July 2005 to December 2011, JSDP was a 28 million Pounds project to “support the development of an effective and accountable justice sector that is capable of meeting the needs and interest of poor, marginalized, and vulnerable people” (DFID 2005). At the core of this objective was the

“assumption that states with poorly functioning legal systems and poor crime control are unattractive to investors, which in turn suffers economic growth” (DFID 2002, 13).78 In making the link between justice sector reform and economic progress, DFID’s Director General, Mark

Lowcock, underscored that:

Investors and businesses need to be confident that there is a stable and predictable regime for the maintenance of property rights and the implementation of contracts, and that where things go wrong there will be effective and fair redress through the courts (Awareness Times, 16 September 2005).

The program was managed by the British Council and a total of 17 different projects were implemented to develop legislative and policy frameworks as well as enhance the human resource and management capacity of the justice sector to improve access to justice for vulnerable groups (DFID 2011). In additional to producing a sector-wide integrated justice reform strategy, infrastructural development included construction of 2 new prisons, 94 accommodation units for prison staff, 3 new court buildings in Freetown, 15 new Police Family

Support Units, and 2 juvenile facilities (DFID 2011). Among the new courts in Freetown is Fast

78 In 2002, DFID developed a broad policy on safety, security, and access to justice (SSAJ) which built on its December 2000 Issue paper on Justice and Poverty Reduction. Two other documents that formed the basis of the SSAJ policy included The Government White Paper on Eliminating World Poverty: A Challenge for the 21st Century and a Strategy Paper on Making Government Work for Poor People.

178

Track Commercial Court, fully automated to ensure speed, efficiency, and transparency in dealing with commercial disputes. A Judicial and Legal Training Institute has also been established to provide continuous judicial education to judges and magistrates (Awareness Times,

26 October 2009). In collaboration with other agencies such as UNDP and UNAMSIL, new courts and residences have been built and existing ones refurbished in regional headquarter towns outside Freetown.

Apart from infrastructural development, JSDP was geared toward “improving the efficiency and effectiveness of the judiciary in the administration of justice through closer coordination with key institutions in the justice sector” (Awareness Times, 2005).79 In pursuance of this approach, the Justice Sector Coordination Office (JSCO) was established within the Ministry of Justice to coordinate the implementation of the country’s Justice Sector Reform Sector Reform Strategic and Investment Plan (JSRS & IP) 2008-2010. The JSRS & IP is designed to delivery of the government’s commitment to justice in its Poverty Reduction Strategy Paper (PRSP) and is linked to government’s resource allocation processes through the Medium Term Expenditure

Framework (MTEF). In allocating JSDP funds for sector groups, 60% of the total program budget was for legal and judicial development, 30% for public sector and administrative management, and 10% for public finance management. When the JSDP folded in 2011, it was succeeded by a follow-up Access to Security and Justice Program (ASJP) estimated to cost 19.4 million Pounds for the next four year period.

79 Statement by the Chief Justice, Dr. Ade Renner Thomas during the launching of the Justice Sector Development Program (Awareness Times, 16 September 2005).

179

Made in America: Liberia’s Postwar Rule of Law Reform

As in neighbouring Sierra Leone, Liberia’s justice reform is to a large extent supported by bilateral funding and technical assistance, more so from the US. Reflecting America’s long- standing relations with Liberia, parties to the comprehensive peace agreement (CPA) had requested that the US play a lead role in restructuring the post-conflict state of Liberia.

Following the 2005 election victory of Ellen Johnson-Sirleaf, the US Government launched a broad-based, multi-faceted rule of law program designated to help plant the foundation for rebuilding Liberia’s devastated justice and economic systems (USAID 2009). In general, overall funding in the Liberian rule of law sector was estimated to cost about $13 million annually and the US Government on its own contributed approximately half of this amount.80 In a 2009 review commissioned by the USAID, it is noted that in a three-year period the US spent $25, $545, and

$505 million on rule of law programming in areas of advocacy and public awareness, capacity and institution building, and enhancing access to justice. Funding was channelled through the

Department of Justice (which had a Resident Legal Advisor placed within the US Embassy), the

Pacific Architects and Engineers (PAE for a team of on-the-ground legal advisors assisting various government institutions), the American Bar Association (ABA working with the Judicial

Institute of Liberia), and the Carter Centre (focused on traditional justice and mediation systems). Technical guidance to most American rule of law programs came from the Bureau of

International Narcotics and Law Enforcement Affairs (INL) whose primary objectives are “to improve judicial and law enforcement effectiveness, bolster accountability and transparency of

80 Keith Henderson, Charles Jakosa, and Charles Gibson, Evaluation of Rule of Law Programs in Liberia, prepared for the USAID (April 2009).

180

criminal justice agencies, and institutionalize respect for human rights and the rule of law”

(Department of State, 2010, 2).

Substantially, more programmatic activity was geared toward capacity building of various justice sector institutions and awareness raising on issues related particularly to gender equality and women’s rights (USAID 2009). The Justice Sector Support Project (JSSL), implemented by

PAE, created a wide range of training materials which American law fellows utilized in a series of training activities for judicial officers and court administrators. ABA assisted the Supreme

Court and Judicial Institute of Liberia to train a new group of judges, lawyers, and court staff on the operation of proper justice systems (USAID 2010). Emphasis on protecting women within the criminal justice system culminated in the creation of the Sexual and Gender Based Violent

Crime Unit in the police force (Flomoku & Reeves 2010). For its part, the Resident Legal

Advisor (noted above) was hired to work on anti-corruption matters, leading to the development of legal and ethical infrastructure for creating a body to investigate, prosecute, or prevent public corruption.

The only program designed with a broader scope outside Monteserrado and the state justice system is the Carter Centre’s Access to Justice Program which aimed at engaging indigenous conflict management in Liberia to foster their respect of rule of law and human rights standards.

With initial funding from the Department of State’s Democracy, Human Rights and Labor

Bureau, the Centre launched a pilot project to raise traditional justice reform issues to a higher level of national dialogue among key rule of law stakeholders in Liberia. Initiated in 2007, the project supported engagement with the National Traditional Council (NTC) on customary justice

181

issues such as public participation and the need to harmonize formal and traditional justice systems. Succeeding the pilot was a $6.75 million USAID-funded project titled Strengthening

Citizen Participation in Government: Access to Justice and Information. The activities under the access to justice component were intended to enable the NTC and county-level traditional authorities to implement best practices in conflict resolution so that they can legitimately intervene to resolve local disputes. In April 2010, the Centre in partnership with UNMIL and the

United States Institute of Peace (USIP) convened a national conference on enhancing access to justice which called for a Legal Working Group (LWG) to study the current status of Liberia’s dual legal system (Carter Centre 2010).

In 2011, the Carter Centre received an additional $ 4 million in funding support to continue the original activities in addition to training community legal advisors (CLAs) and providing civic education on legal rights and empowerment issues. Working in collaboration with the Liberian

Catholic Justice and Peace Commission (JPC), CLAs have been deployed in several counties “to provide rural citizens with free information on their rights under the law, help people interact with government courts and traditional authorities, mediate small-scale conflicts, and engage in advocacy around justice issues” (Flomoku & Reeves 2010, 45). Usually, civic and legal educators focus on existing national laws and new legislations relating to inheritance rights, rape and domestic violence, trial by ordeal, land disputes, and court fines.

Rebuilding Formal Justice: Availability, Effectiveness, and Accessibility

As these examples of DFID and USAID illustrate, externally-driven justice sector reforms have placed undue premium on building the capacity of state institutions to deliver justice in Sierra

182

Leone and Liberia. As discussed in Chapter 2, this state-centric paradigm is grounded in donors’ expectations about what should be the legitimate functions of a state, the conditions under which those roles should be extended to non-state actors, and what for them explains the resilient of informal conflict resolution mechanisms. Moreover, the “statebuilding as peacebuilding” model is in line with the good governance idea of defining institution building or the effectiveness of institutions solely in terms of transforming them into a legal-rational entity. According to DFID’s

Non-state Security and Justice System (NSJS) guidelines, “poor people’s preference for using non-state institutions may reflect the weaknesses of the formal system and does not necessarily indicate satisfaction with non-state actors themselves” (DFID, NSJS 2004, 3). Likewise, the

American INL as well as the UN Rule of Law Office recommends that non-state justice mechanisms and actors be engaged with caution, warning that they can be discriminatory toward vulnerable groups like women and children. INL insists on working with autonomous civil society organisations in order to ensure that assistance is calibrated to improve the rights and well-being of all members of society. Operating through civil society organizations, it is believed, serves a dual purpose of monitoring compliance with international standards and treaties at the same time advocating on behalf of those whose rights have been violated

(Department of State 2010, 7).

Of the two leading bilateral donors in justice reform, the UK seems more reluctant to deal with non-state actors, particularly traditional institutions such as chieftaincy. Unlike USAID which has channelled some of its bilateral assistance through traditional authorities, DFID’s bureaucratic culture “predisposes it to certain forms of engagement that privilege the state and simultaneously problematize informal actors like chiefs” (Denny 2013, 6). As far back as 2002,

183

DFID abandoned the Chiefdom Governance Reform Program (CGRP) in Sierra Leone because the agency’s liberal-democratic values could not permit engagement with institutions which were perceived as inherently discriminatory and inhospitable to individual human rights (Denny 2013,

2014). In fact, DFID’s NSJS guidelines (2004) note that it may “be preferable in some cases not to engage with non-state systems or even see them dissolve as part of an overall justice sector strategy” (NSJS, 4). A corollary expectation is that once the state institutions become effective, they will increase the cost both of violating the formal rules of the game and relying on informal institutions to solve collective action problems. Nonetheless, this dominant approach to justice reform, together with its built-in normative expectations, is fraught with a number of problems, discussed below.

This discussion is drawn mostly from interviews with 15 legal practitioners (lawyers and attorneys), 10 human rights activists and local peacebuilding experts, and 7 officials of the government and aid agencies.81 Their responses are largely based on practical professional experiences in justice reform programs and what they said have been corroborated by further interviews with about 20 community-based paralegals who assist indigent and illiterate persons to navigate the criminal justice system through daily monitor of police stations, law courts, and prisons.82 On several occasions during fieldwork, the researcher also attended court sessions to observe trial proceedings and general operations of the judiciary, particularly in district headquarter towns where most of the problems discussed below are evident. What was observed

81 Most of the examples in this section would be based on experiences of respondents in Sierra Leone. The number of people interviewed in Liberia is smaller compared to Sierra Leone because the 2014 Ebola outbreak disrupted extensive fieldwork in that country. 82 Interviews with traditional authorities and local community members are mainly relevant for understanding the interaction between primary justice systems. But in responding to questions about the formal justice system almost all of them affirm the challenges and constraints that other groups of respondents attested to in their interviews.

184

in these courts mostly confirms not only experiences of respondents in in-depth interviews but also recent assessment reports of the judiciary by independent research institutions as well as relevant academic literature on questions of local ownership and the colonial origins of the state justice system in Africa.

Capacity Deficit

Firstly, donors have underestimated the costs and time needed to extend formal justice systems to the majority of citizens living in peripheral areas that are physically disconnected from a highly concentrated modern state and economy. In both countries, the inferior formal courts

(magistrate courts, local courts, JP courts) are still grossly inadequate and sparsely located outside urban capitals and rural headquarter towns. Currently, Sierra Leone has only three High

Court judges in the provinces based in the regional headquarter towns of Makeni, Bo, and

Kenema. Although 12 out of the country’s 15 judicial districts are located in the provinces, there are 10 magistrate courts in Freetown alone while four provincial districts still do not have a single resident magistrate (Open Society Foundation 2014). The shortage of judicial officials in the provinces has often necessitated an itinerant court system which is basically a roaming mechanism that allows judges to periodically move into judicial districts and chiefdoms without a permanent court to sit for cases emanating in those areas. But owing to logistical challenges in accessing remote areas with the poor road network (particularly during the rainy season), the circuit system tends to be very irregular and limited to chiefdoms that are readily accessible by road.

185

Normally, donor assistance to expand formal justice into poor rural areas would include initial logistical support such as providing vehicles to transport judges to outlying judicial districts. But the recurrent costs (e.g., fuel, spare parts, and regular maintenance) are difficult to meet due to low budgetary allocations to the judiciary and/or administrative hurdles in accessing government funds in a highly centralized state system. Considering the more than two decades of overcentralized administration in which governance was concentrated in the political and commercial capital (discussed in Chapter 3), it would take a considerable period of time for decentralization programs to be effectively implemented. One of the highly centralized ministries at the moment is the Ministry of Justice, and central bureaucrats in all sectors have always found it extremely difficult to devolve fiscal authority to local governments at the sub-national level.83

Consistent with the common responses of judges posted upcountry, this retired magistrate who has served in many provincial areas underscored the major logistical problems involved in dispensing formal justice in provincial areas:

There are serious logistical challenges in the provinces. Everything is centralized in terms of logistics; if you don’t come to the city to get stationary and other things, you have to provide it yourself from your own pocket. Until the central office provides logistics for you and you cannot provide it yourself, you have to wait. Sometimes we have vehicular problems. When you are in the provinces you cover three or four stations and most of these stations are in the far ends of districts with terrible roads and rough terrains and you have very old vehicles. Sometimes you don’t go to other stations, we call them itinerant courts, until after two weeks even though the law says you should not remand a prisoner for more than eight days without trial.84

83 For instance, according to 2012 Devolution Update of the Decentralization Secretariat of Sierra Leone only 5 out of 15 MDAs targeted form devolution have fully devolved their functions since 2004 when local councils were established, that is, a total 34 out of 80 functions expected to be devolved. The Ministry of Justice and Finance are not among the MDAs targeted for devolution under this current program (Sierra Leone Decentralization Secretariat, Update on Status of Devolution of Ministries, Departments, and Agencies (MDAs), December 2012). 84 Interview with Roland Kamara, Retired Magistrate for Makeni, Kabala, & Koinadugu, and private legal practitioner, conducted on 8 July 2014 at his office, 3 Big Waterloo Street, Freetown, Sierra Leone.

186

Similar logistical challenges confront newly built or refurbished court infrastructures when withdrawal of donor funding is not accompanied by sustained financial commitment by national governments. Court buildings as well as modern equipment to facilitate the administration of justice quickly degenerate into shabby dysfunctional conditions because of a shortfall in funding to meet their operation and maintenance costs. Record-keeping is still through a manual paper filing system as neither donors nor the government have committed resources to computerize case records into software databases for easy storage, access, and retrieval of information (Open

Society Foundation 2014). Of the 15 lawyers and attorneys interviewed in this research, the majority admit that the dispensation of justice, even where courts are available, continues to be hampered by perennial administrative and operational problems despite several donor-funded projects aimed at fixing them. These complaints (noted below) of how unconducive administrative environments affect the morale of judges and other judicial personnel are typical.

DFID and JSDP have spent a lot of money on the judiciary but we are yet to see how much of what they have spent is reflected in reality. I am sitting here [his office] without internet connection and no water system in the building. We still don’t know how best to ensure that cases are heard speedily and in a timely manner.85

If we look at the administrative aspects of courts, they are not well financed in the provinces because the funding is centralized. Everything would have to come from the capital city to the provinces and this takes time. And the courts are not well-equipped; they are lacking basic materials like stationary, trained staff, electricity supply, accommodation for staff, and finance to run the courts. I could remember sitting court in Makeni sometimes we lawyers have to contribute to buy fuel for the generator. The atmosphere was not conducive to sit court; the court was hot.86

These problems were either not anticipated during initial project designs or expected to be addressed by national governments through budgetary allocations and decentralization policies.

85 Interview with Justice Abdulia Fofanah, High Court Judge and Former Customary Law Officer, conducted on 13 June 2014 at his office, the Judiciary of Sierra Leone, Siaka Stevens Street, Freetown. 86 Interview with Robert Kowa, Legal Practitioner and Coordinator, Access to Justice and Peace Commission with support from Charitas Freetown, conducted on 21 August 2014 at his office, Rawdon Street, Freetown.

187

But it turns out that those expectations have rarely been met. Despite numerous commitments made in national agendas and strategic policy papers, there are insufficient national funding supports to the judiciary and the available funds are too tightly controlled at the central administrative level to allow timely disbursement to meet daily operational needs. A major challenge facing donor-driven projects is to get governments to honor their commitment to fund the judiciary after the downscaling or withdrawal of donor support. Often governments treat the judiciary as a department instead of a separate arm of government and this is reflected in very low budgetary allocation to that organ. For example, budgetary allocations to the Judiciary of

Sierra Leone in the past five years have been less than 1% of the overall national annual budget.87 Unsurprisingly, the judiciary is still plagued with poor conditions of service including low salaries, which in turn makes the bench unattractive to legal professionals who are qualified to serve as judges, magistrates, and other court officials.

Legal Representation and Litigation

Secondly, donors have concentrated most of their resources on resurrecting a state system not realizing that the system itself is by design a barrier to accessing justice. Both Sierra Leone and

Liberia operate a complicated formal justice system that is based on a common law tradition inherited from Anglo-Saxon settler and colonial indirect rule. The common law tradition is an adversarial-oriented system in which proceedings typically involve legal representation to technically present evidence, interrogate litigants and their witnesses, and make a case before a judge who is supposed to be an umpire between prosecuting and defence counsels. According to

87 These figures of the 2013 national budget (before the Ebola outbreak) puts this neglect of the judiciary into proper perspective. According to this budget government allocated 1.5 billion Leones to the judiciary while parliament and the security sector received 10.1 billion and 150.4 billion Leones, respectively (Government of Sierra Leone, Government Budget and Statement of Economic and Financial Policies for the Financial Year, 2013).

188

Order 5(1) and 6(1) of the High Court Rules of Sierra Leone (2007), to appear in court, a petitioner needs to file a writ of summons stating the nature of the claim as well as the relief or remedy being sought, without which no civil proceedings will commence. The same rules of court technically prohibit a body corporate from instituting an action without a lawyer, and require guardians of persons with disability to act only through a lawyer.

This emphasis on legal representation and litigation is not only intrinsic to the inherited common law tradition but also relates to the way modern system of courts were introduced in most

African countries including Sierra Leone and Liberia.88 From its onset, the modern court system required legal professionals capable of applying English law. Yet the absence of qualified persons in the former colonies compelled the fusion of the positions of solicitor and barrister— that is, the persons who carried out office work in law also appeared in court. This practice of merging these two hitherto distinct roles due to the shortage of legal professionals has eventually coalesced into a norm in the sense that lawyering is now commonly associated with appearing in court to litigate cases. Growing attention on litigation has made the state system increasingly combative and the situation is compounded by the fact that the system evolved into a highly formal and technical structure: the language of the court is usually English, the rules of court are codified, and competent lawyers can win a case on technical grounds. You do not need to hire a lawyer if you can competently represent yourself in a trial but the system is structured in such a way that lawyers have disproportionate advantage over laypeople who choose to represent themselves. At the same time lawyers are in short supply, overloaded with cases, and

88 Prior of colonial rule in Africa there were no legal professionals as currently understood and disputants appeared in person to present their case in traditional adjudication. Although here were people who were versed in the law (e.g., chiefs and elders); training in customary law and practices was a general informal lifelong process that did not require the services of legal experts (see Manteaw 2008; Ndulo 2002).

189

concentrated in capital cities and regional headquarter towns. There are 13 law firms in Sierra

Leone, all based in the commercial and judicial district capital, Freetown.

Meanwhile, there are no standard scale of fees for consultation and legal services in both countries. The Legal Practitioner Act (2000) mandates the General Legal Council of Sierra

Leone to prescribe fees for legal practitioners in non-contentious matters but this provision is hardly enforced with consultation fees now ranging from Le 150,000 ($50) for senior lawyers to

Le 50,000 ($20) for junior lawyers (Open Society Foundation 2014). In a country with high levels of poverty and a statutory minimum wage of about Le 40,000 ($10.5) per month, it is highly likely that most litigants cannot financially afford the service of a lawyer.89 Actually, the income of many people allows them to qualify to sue in the formal courts as “a pauper” whom the Civil Rules of Procedure (2007) describe as persons net worth Le 1,000,000 ($300) or to apply for legal aid as indigent persons under the 2012 Legal Aid Act. However, the Open Society

Foundation (2004) finds little evidence of people using this provision either because they are unaware of it or the process of application is too cumbersome. Before the Legal Aid Act, some attempts have been made under a Pilot Legal Aid Scheme (2010) to provide free legal representation for indigent persons but the costs of doing so have been difficult to sustain long- term without financial commitment from national governments.90 Again, this attention to private practice for monetary gain is deeply rooted in the previous colonial policy of using legal instruments to protect the market, revenue collection, and commercial interests. Manteaw (2008)

89 In 2014, a new law was passed to raise the minimum wage to Le 500, 000 ($115) but that law was not in force at the time of this research (see Manoki Times, “Sierra Leone government threatens tough action over minimum wage defaulters,” 7 April 2016). 90 Between January 2010 and June 2011, the Pilot Legal Aid Scheme provided legal services to over 3,475 persons who could not afford to hire a lawyer including 2,851 adults and 624 juveniles. But since the passing of the 2012 Legal Aid Act, the government has been slow to establish the Act’s main governing organ, the Legal Aid Board (Open Society Foundation, 2014).

190

reminds us that in the absence of a significant number of African lawyers during colonial rule, the legal profession in Africa became heavily dominated by European expatriates and wealthy

Asians who were more interested “in representing rich and commercial clients and litigating cases” (916). What this implies though, as even majority of attorneys interviewed admit, is that only the economically affluent and politically well-connected minority can afford to hire powerful lawyers and often adequate representation in the formal system goes to the highest bidder.

Orthodox Legal Profession

A third problem with justice reform relates to formal rules that put the state system out of touch with local realities. This is partly a product of an orthodox judicial training and culture which post-conflict justice reform has only sought to reinforce. It must be recalled that colonial administrations ignored the provision of training facilities for legal education in most of their colonies in Africa as a matter of policy.91 Instead, the few Africans who could afford to, travelled abroad to acquire legal education, the most famous destination for British colonies being the Inns of Court in London. At independence, when more lawyers were needed to run the courts and various government bureaucracies, African lawyers trained in English law were automatically put in charge of legal training to ensure smooth transition to local legal education (as most of them had acquired their education in England or other British Commonwealth countries).

Invariably, most African law faculties and schools adopted an English legal education curriculum almost wholescale with a two-tier system of academic training in a recognized

91 It was more important to train historians, missionaries, and educators than lawyers because Africans who wished to read law were regarded as preparing for a career in politics which may be self-destructive of the colonial project (Ndulo 2002; Twining 1962).

191

university for a Bachelor of Law (LLB) degree followed by a professional training at a law school for a call to the bar (Barrister/Solicitor Certificate).

Yet the problem, as Manteaw (2008) argues, was that African lawyers called to the English Bar were trained exclusively as barristers not solicitors and their legal training paid no attention to the challenges of practicing law in an underdeveloped country with multiple systems of law.

Since independence, local legal training in Sierra Leone and Liberia has been dominated by private practice approach to juridical relationships focusing more on British contract law and

American principles of constitutionalism and human rights. Also, the legal curricula in both countries are still heavily reliant on lecture pedagogy complemented with ad hoc legal clinics and a pupillage experience in the chambers of senior lawyers. Particularly problematic is that legal training has not been tailored to produce lawyers who would be sensitive and responsive to current local realities, needs, and priorities of justice. As in many post-colonial countries, local legal training in both countries was never “designed to meet domestic development needs, stimulate vibrant interest in customary law as it relates to the global legal order, and to fix basic structural problems” (Manteaw 2008, 938). Apart from a few modules in legal history and

African family law, there is no rigorous comprehensive training in customary law or African legal traditions at both the academic and professional levels of legal training, according to those officials interviewed in this study. Students are educated to uphold the superiority of the English law which they would be interpreting and such a law is referred to as general law even though its application is limited to urban cosmopolitan areas.

192

The current justice reform programs intended to build professional capacity have only reinforced this orthodoxy by bringing in foreign professionals, supporting pre-existing educational institutions, and developing training programs for local lawyers. Initially, tension arose when foreign judges and some contracted local practitioners were receiving salaries commensurate to international standards while their local counterparts not under contracts were paid paltry amounts by national governments.92 As private incomes became an important consideration, justice reform was seen as an opportunity for lawyers to make more money (Kandeh 2011) and additional legal training for judges prepared some of them to enter private practice for better pay

(International Crisis Group 2006). Furthermore, most training support provided by foreign experts was geared toward enhancing the capacity of lawyers and other legal professionals rather than transforming the educational structure through initiatives such as curriculum review and introduction of new methods of learning oriented toward local realities. Of course, expatriates would have limited interest to expand training curricula to incorporate local content as their education and professional experience has been abroad. The problem though is that expatriates often do not realize that the vast majority of those who can afford such education are either children of, or related to, the historically dominant elite class. As one lawyer attests, legal training is still highly conventional and elitist, a situation which many young legal practitioners interviewed in this research considered as a serious problem.

The lack of human resource is a result of the lack of decentralization of legal training. Legal training over the years, until recently when we started the law department at the University of Makeni, was centralized in Freetown in the hands of few elites. But legal training is also conventional in Sierra Leone; it is only based for people who want to become lawyers. There is not that kind of legal education that can trained other people; for instance, law and justice officers in the courts, bailiffs, court clerks, registrars, police

92 Interview with Simeon Koroma, Director, Timap for Justice, conducted on 4 march 2014 at his office, 4E Mudge Farm, Off Aberdeen Road, Freetown.

193

prosecutors. There is no formal training for these people [even though] these are the frontline soldiers for justice in Sierra Leone.93

Also, there is little or no discussion about the colonial judicial culture that lawyers are socialized into during their training and practice, beginning with dress code. A strict dress code requires lawyers to robe in their full legal regalia (including traditional gown, collar, and wig) when appearing before a superior court judge. And some lecturers instruct their students to dress up in formal suit when attending their lectures. These conventional etiquettes seem to be associated with the social clout and status of being a lawyer yet they create a court atmosphere that is intimidating for illiterate litigants who are not familiar with such formal settings.94 For some legal practitioners, adhering to rules of court ironically becomes equated to, or more important than, the substance of justice meted out by the system and the result of this attitude has been a formal system that is too process-oriented. By this formal orientation, a certain rigidity has been built into the system which makes it unable to move away from a process even if that procedure is no longer working or creating injustice.95 One way that inherited colonial conventions have been upheld is through the pupillage system which requires junior lawyers to understudy senior practitioners before they are allowed to litigate in court.

Also, while reforming the justice system is geared towards enhancing its judicial independence

(which remains highly questionable) there is relatively little attention to issues of judicial accountability. Judges wield enormous discretionary powers in administering bail policies and

93 Interview with Chernor MB Jalloh, Barrister and Solicitor of the High Court; Director, Access to Justice Law Center; and Head of the Law Department, University of Makeni, Sierra Leone, conducted on 26 May 2014 at his residence, R & B Hotel, Off Binkolo-Kabala Highway, Northern Sierra Leone. 94 Interview with Jamesina King, Commissioner, Human Rights Commission of Sierra Leone, conducted on 26 March 2014 at her office, NEC Building, Tower Hill, Freetown. 95 Interview with Sonkita Conteh, Program Director, NAMATI Innovation in Legal Empowerment, conducted on 25 February 2014 at his office, 31 Murray Town Road, Freetown.

194

handing down judgments even though there is limited room for public oversight on decisions such as who qualifies to sit on the bench and how they are promoted.96 While there is no shortage of constitutional provisions and statutory bodies to hold the judiciary accountable, there are no effective mechanisms to guarantee that they carry out their oversight functions without fear or favour. Likewise there are no decentralized monitoring and supervision mechanisms in place to ensure that judges are regular and punctual in their courts nor a law reporting scheme to find out how frequently they write and deliver their judgments.97 Operating a justice system that is protected from public scrutiny and bereft of a decentralized accountability machinery makes judicial officials prone to taking “orders from above” particularly in political systems where the executive equally wields enormous power. A recent report notes that public confidence in the judiciary remains low principally as a result of allegations of pervasive corruption and bribery, a situation made worse by poor remuneration for the police and court officials.98

Local Ownership

The last problem in justice reform programs is the dominance of aid agencies which are often interested in a narrow technocratic approach. In Sierra Leone, the Open Initiative Foundation

(2014) estimates that about 85% of the justice sector budget is provided by donors either through the General Budget Support (e.g., EU, World Bank, DFID) or the newly created sector budget support (DFID/JSDP Initiative). Although data regarding the breakdown of funds are mostly

96 Interview with Ibrahim Tommy, Program Director, Center for Accountability and Rule of Law (CARL), conducted at his office, 51 Upper Brook Street, Freetown. 97 Interview with Sonkita Conteh, Sonkita Conteh, and Jamesina King, ibid. 98 Among the high profile corruption cases involving judges in Sierra Leone include the following. In 2001, a High Court judge, Justice Taju Deen was convicted and sentenced to 12 months imprisonment on corruption charges. In July 2008, the late paramount chief of Bo, Rashid Kamanda Bomgay was accused of influencing assessors in a land dispute so as to share the disputed land between himself, the magistrate, and others (Open Society Foundation 2014).

195

classified as internal agency information, many local experts interviewed in this research state that a sizeable fraction of donor funds go back to home countries as salaries and allowances for expatriates as well as to agencies’ international administrative staff. Besides, the fixation on technical institution building often skews funding in favour of particular types of projects which have verifiable indicators to measure justice reform for reporting purposes. When developing funding proposal, weaknesses in justice systems are usually linked to inadequate number of justice personnel, poor infrastructure, broken filing and record management systems, inadequate legal training, and other measurable indicators. Equally, it is possible to quantify from progress reports the number of court and prison facilities built, how many judges have been trained, the amount of logistics provided, and the number of new laws passed in parliament. Furthermore, these types of progress reports are deemed more credible because they provide quantitative evidence and their timely submission is critical to ensure the continuation of project cycles.

Describing this type of project cycle as “library funding,” a private legal practitioner, whose experience is similar to majority of lawyers interviewed, summarised the standard practice as such:

First of all, those who give the funds are not patient and they come with a particular mindset. They set their terms and conditions either in London or Washington, come with a package, and they want to roll it out on their own terms and timelines. This is library funding: you bring the money, seminars are conducted, reports are written, and salaries are paid to those who bring these monies because they have to pay mortgages abroad. I have received funds from donors but I have always told them not to come and prescribe.99

In addition to rigid technocracy, the power relations between donors and national governments also do not help the situation. It is not in all instances that reform programs are formulated abroad as national governments do have their own post-war recovery agendas with well-

99 Interview with Chernor MB Jalloh, 26 May 2014, ibid.

196

articulated justice development strategy (discussed in the first section). Yet in the absence of a required financial commitment, donors may use their funding and technical support to influence changes at the policy and legislative level. Instead of international partners agreeing to fund a national agenda, it often turns out that when governments are searching for external funding they have to make sure their programs suit what donors want to fund.100 This asymmetric power dynamic also characterises the way foreign and local experts relate in program design and implementation. Either because of the paucity of local experts or their perceived lack of credibility, donor-funded projects tend to be led mostly by expatriates who may be relatively unfamiliar with the sociocultural and political circumstances of the local environment to which they have been posted. Learning and adjusting to local context takes time and the alternative of partnering with local experts who may be already knowledgeable is sometimes stifled by the dominance of expatriates at the level of decision-making. From the experiences of national peacebuilding experts who have been consulted by donor agencies, one local consultant expresses the common issues of power relations between expatriates and their local counterparts.

Well to be honest, the clichés are there. When you talk about the Paris Declaration …ah…country leadership, country ownership, and sustainability. But sometimes these entities themselves use all these clichés but do not have what it takes to make it happen. Some of them do not give pre-eminence of place to national professionals within their organization. They have national professionals but in most cases in the backseat. One of the problem is they overstate the story of lack of local capacity. So failing to put nationals in the driving seat, they would say there is no capacity and then they would bring a junior professional who has to partner with a national professional who ends up doing most part of the job.101

100 Interview with Simeon Koroma, Director, Timap for Justice, conducted on 4 March 2014 at his office, 4E Mudge Farm, Off Aberdeen Road, Freetown. 101 Interview with Emmanuel Gaima, former Director of the Decentralization Secretariat of Sierra Leone, Governance Adviser for UNDP, and Country Director for UK’s Oxfam, and currently research consultant, conducted on 12 June 2014 at Green Scenery Office, John Street, Freetown.

197

As this quote aptly demonstrates, the politics of donor agencies makes it increasingly difficult for them to fully incorporate national experts or value local knowledge. Additionally, agencies’ inability to fully adopt locally-driven approaches is related to their standard operating systems including recruitment, promotion, financing, and operational procedures (Denny 2013). Given the fact that these organizations are accountable to their home countries rather than recipient governments and people, the incentive for change in donor strategy is usually low. Even in instances where national elites and local experts have been involved, broader local ownership through bottom-up approaches is unlikely to take place if knowledge generated from local consultations has to meet certain standards of legal-rational reliability.

Conclusion

Combined, these challenges raise questions about the extent to which the formal justice system is available, affordable, accessible, and culturally relevant in war-torn societies of Sierra Leone and

Liberia. Sparsely located and poorly-equipped courts have obvious cost implications for physical and financial access to formal justice for the majority of (poor) people living in remote areas away from urban headquarter towns. Also, extremely formal rules of court present a barrier to largely illiterate and uninformed citizens, even for those who may want to seek redress through the legal state system. This situation is not helped by an inequitable political economy that gives undue advantage to the already dominant class in society. Most paralegals interviewed in this study underline the major implications of the current approach to justice reform this way:

The matter of legal representation is the most difficult one because some people are capable of hiring the services of lawyers while others cannot afford. So the entire system depends on which category of people you belong to; let’s say the rich, poor, or those in position (my emphasis). And because of this huge gap between the poor, rich, and influential, cases are delayed unduly only for them to say at the end of the day that they are under investigation. So when it begins to get slow there and one party claims to know

198

a powerful lawyer or wants to call the local unit commander, some people begin to look at themselves as being in a disadvantaged position102

This local resident of a rural community also represents the typical experiences of poor and illiterate people attempting to seek justice through formal channels. She uses the term sababu, which is a synonym for opportunities enjoyed by those who are well-connected.

For matters that are taken to the police or magistrate court, women do not have access to lawyers and this leads to delay of their cases. The problem is that people are poor and cannot afford access to formal justice. So the issue is finance. Without money, you would be advantaged and your rights trampled upon. Money and sababu are what you need to seek justice in this country.103

Above considerations of money and power, the extension of formal justice into peripheral areas heightens questions about multiple justice norms, who is a legitimate dispenser of justice, and which norms and practices are considered socially relevant in particular local contexts. The formal justice system is certainly relevant to address certain types of criminal cases and the kind of justice it dispenses may be preferred by the educated, economically well-off, or politically well-connected. But beyond this class, it is highly questionable whether the formal system can build public trust as a dispenser of justice among the majority of poor, illiterate people living in rural communities. Unfortunately, fundamental questions about these asymmetric socioeconomic structures that sustain the existing justice system have not been asked as reform has essentially been about fixing aspects that seem ineffective instead of questioning the social relevance of the entire system itself. For example, remedial efforts are being made in the form of legal aid

(though grossly inadequate) to assist those who cannot afford or lack understanding of how to

102 Interview with community-based paralegals working for Timap for Justice, conducted on 2 June 2014 at their district office, 49 Upper Kai Tibi Street, Bo, Southern Sierra Leone. 103 Interview with Abibatu Kamara, a local resident of Gbendembu Town, Bombali District, Northern Sierra Leone, conducted at her home on 13 April 2014.

199

navigate the system, instead of reviewing and simplifying those structures which make accessibility difficult in the first place. Rather than transforming the system by simplifying its structures and procedures, justice reform programs in Sierra Leone and Liberia have merely succeeded in capacitating state institutions that work mostly in the interest of the economically and politically dominant class.

Donor assistance has been crucial to justice sector reform and its support is evident, particularly in capacity and institution building including training, infrastructure, logistics, equipment, and vehicles for judicial officials. But even with such assistance, there is still a dearth in institutional capacity and a shortage of human resources needed to build on donor-driven projects because of lack of sustainable financial support. Accountability and responsiveness of the justice system continue to be major challenges, with allegations of executive interference and corruption within the judiciary remaining widespread (Open Society Foundation 2014). Despite the fact that substantial parts of donor funding have been devoted to state institutions (the police, prisons, and judiciary), the formal system faces numerous problems that continue to undermine its availability nationwide as well as its ability to function effectively and efficiently.

In terms of developing this dissertation’s theoretical model, the degree of (in)effectiveness of the state system represents the first aspect in determining how formal and informal justice systems would interact in war-torn societies (Helmke and Levitsky 2004, 2006). Particularly significant for building the model is that institutional effectiveness has been defined in terms of the extent to which the formal justice system is able to make legal redress accessible, affordable, and available in a timely manner to the majority population. Effectiveness is linked more to outcomes rather

200

than processes of formal justice and emphasis is placed on the extent to which reforms have enabled people to access justice in additional to building state capacity to deliver justice.

Obviously, the state justice systems in both Sierra Leone and Liberia are still being engaged to enhance their capacity to deliver formal justice efficiently nationwide but capacitating the existing system does not necessarily guarantee increased access for the majority population if the processes, procedures, and structures upon which the system is based remain intact. The extent to which the entire system is transformed helps to determine whether its interaction with informal justice institutions would be complimentary or competitive.

This is the broad state institutional context in which alternative forms of conflict resolution mechanisms have historically thrived in Sierra Leone and Liberia. Yet the problem is not just a question of availability and effectiveness of the state justice system itself in the post-conflict environment. In addition to these concerns is the critical issue of formal regulation of non-state mechanisms by rule of law programmers using the same approach intended to reform the formal justice system. Where engagements with non-state justice institutions have been evident—more so, those administered by traditional authorities (chieftaincies)—the underlying objective is to subject them to state control and make their procedural and substantive norms consistent with international rule of law standards. Apart from prohibiting the application of customary law in certain areas, state regulation of customary justice is essentially about formalizing the rules of such application and ensuring that they are inconsistent with statutory provisions enshrined in national constitutions and international treaties ratified by central governments. Realizing this objective is certainly central to addressing the illiberal, patrimonial, and patriarchal tendencies commonly associated with traditional institutions like chieftaincy. And pressure for such reforms

201

has heightened in the post-war period more than in any previous epochs. But also this rule of law engagement with customary justice systems can potentially create a justice vacuum by limiting access to justice in the absence of an effective and/or legitimate state provision (Isser et al.

2011). Crucially, statutory regulations have serious implications for local power relations including customary rights and obligations, control over local resources, and the authority of traditional actors to maintain social order in their localities. These implications would, in turn, shape the overall patterns of interaction between official and unofficial primary justice systems.

The remainder of this dissertation is a sub-national analysis of the interaction between parallel authority structures that dispense primary justice in multiple regions, focusing specifically on how state-recognized systems relate with unofficial or illegal dispute resolution mechanisms. In the chapters that follow I will use various cases to explore complex interactions between official and unofficial primary justice systems including the combination conditions under which such interaction is either conflictual or complementary. In particular, I will demonstrate that formal regulation of customary institutions may have the unintended effects of creating the very conditions under which unofficial extra-legal mechanisms strive and compete with the state- constituted justice system. This interplay between formal and informal justice norms shape, and is being shaped by, local power dynamics at the sub-national level in Sierra Leone and Liberia, although situated within the wider state-society complex discussed previously.

202

CHAPTER FIVE Engagement with Customary Justice Systems in Post-Conflict Sierra Leone

Introduction

A particularly important development in Sierra Leone’s justice sector reform is to transfer the administration and supervision of local courts from the Ministry of Local Government to the

Judiciary, headed by the Chief Justice. Viewed from a procedural rule of law perspective, transferring local courts to the judiciary is consistent with the principle of separation of powers and makes for an efficient system as these courts can now function as formal judicial institutions.

The shift also means full incorporation of local courts into the state judicial architecture as there is now a single official justice system administering both English and customary law in Sierra

Leone. But while this restructuring process is in line with international rule of law standards, little attention has been paid to how such institutional changes affect the social relevance of vital conflict resolution mechanisms, their informal trust networks, and the authority of traditional institutions such as chieftaincy which administer them.

This chapter focuses on the challenges and implications of making informal dispute resolution mechanisms conform to formal rule of law standards within the context of a complex local political economy and relatively weak state justice system discussed in earlier chapters. It answers the central question of this dissertation which is: how do customary dispute resolution mechanisms interact with the formal justice system without being displaced by state-constituted institutions? The main analysis is organized into two major interrelated sections. Section one focuses on findings related customary justice systems recognized by the state including the legally-constituted local courts and various mechanisms established to supervise them. The main

203

objective in this section is to examine the capacity and effectiveness of these structures as modern agents of primary justice and to analyse how changes in their legal and institutional framework affect the authority of traditional institutions. The second section presents findings on/about the complex interactions between the state-recognized customary systems and their unofficial counterparts in order to unravel the set of conditions that potentiates both mutually cooperative and conflicting relations between them. This interaction is examined in respect to minor criminal matters and local civil disputes, focusing particularly on the procedural justice norms of both systems. The provincial areas of Sierra Leone will be considered as a collective case study but close attention is paid to regional variations in customary law that shape local justice norms. In particular, this analysis will take into consideration the distinction between ritual chieftaincy in the south-eastern region and their more secular counterpart in the southeast.

Findings in the first section were mainly drawn from legal and policy documents that define modern customary justice systems and their link with the formal justice sector. These documents were accessed from the Office of the Chief Justice, the Justice Sector Coordination Office, and other judicial departments. These regulatory frameworks are yet to take effect on the practical operation of state-constituted customary systems but they are worth consideration because their processes of formulation and perception of them have real impact on the relationship between chieftaincy and customary justice. The central sources of primary data for the second section were in-depth interviews with state and customary justice actors coupled with observations of primary justice systems and conflict resolution meetings between stakeholders. In addition to formal justice actors and paralegals, the majority of respondents were traditional authorities in charge of chiefdom administration and serving as custodians of local customs and tradition. A

204

total of 80 traditional authorities were interviewed including 13 paramount chiefs, 8 chiefdom speakers, 22 section chiefs, 10 town chiefs, 15 local court staff, and 12 mammy queens and youth leaders. They are hierarchically organized from the paramount chief to the village or town head, and each layer of authority across the three provincial regions of Sierra Leone was included in the sample of respondents in this research. Interviews were complemented by observations of the interaction between official customary justice systems (local courts) and their unofficial counterparts (particularly chiefs’ courts), taking into consideration distance between them, their mode of operation, informal relations, and targeted population. I observed 6 local courts (the official customary justice system) and 8 chiefs’ courts (the unofficial counterpart of the formal justice system).

State-supported Primary Justice System

Launched in 2007, Sierra Leone’s Justice Sector Reform Strategy and Investment Plan 2008-

2010 was intended to set out a platform for coherent, prioritized, and sequenced activities to reform the justice system. This three-year investment plan billed at Le 79,025 million (US$ 30 million) was to refocus justice sector priorities from the formal system to the delivery of primary justice, i.e. semi-formal and informal justice systems at the community level. Acknowledging that the formal legal system remains inaccessible to 70% of the population, the strategy aimed to provide justice at the community level by ensuring that alternative systems of delivering justice are properly functional and fair.104 The target was to improve the level of satisfaction with the ways in which local courts, paramount chiefs, and sub-chiefs dispense justice so as to create a

104 Justice Sector Coordination Office (2007), The Justice Sector Reform Strategy and Investment Plan 2008-2010.

205

conducive post-conflict environment for private sector development, including access to land and property rights (JSCO 2007). The key to strengthening the quality of justice provided by primary agents was to enhance formal oversight and supervision of their operations. Also, the

Government was to eliminate the abuses associated with customary systems through a three- pronged approach including: capacity building, effective oversight, and legal education.105

The restructuring of local courts can be linked to recommendations contained in the 2004 TRC report which found that some aspects of customary law and Islamic law contradict basic human rights, specifically of women and children. The Commission recommended that “while the institution, status and role of traditional rules and customs should be respected they must be subject to the Constitution [of Sierra Leone]”.106 The repeal of sections 27 (4d) and (4e) of the

Constitution was seen as imperative, as they exempt certain areas of customary law (such as adoption, marriage, and divorce) from protection against discrimination. Regarding local courts, the Commission found their interpretation of customary law was inconsistent and therefore called for the codification of customary law. The ultimate aim of codification “must be to bring customary and Islamic law in line with the Convention on the Rights of the Child and the

Convention on the Elimination of All Forms of Discrimination against Women”.107 Earlier in

2001, the UK’s DFID had abandoned the Paramount Chief Restoration Project (PCRP), preferring instead to commission Peter Tucker as a consultant for the Sierra Leone Customary

Law Reform Project.

105 Justice Sector Coordination Office (2007), p. 18. 106 TRC Report (2004), volume 2, chapter 3, p. 136. 107 TRC Report, p. 136.

206

Based on Tucker’s report, a number of legislations aimed at addressing the recommendations of the TRC have been passed including three gender laws which make provision for the protection of women against gender discrimination and domestic violence.108 Crucially in 2005, the

Government of Sierra Leone (GOSL) also commissioned a leading customary law expert to develop a position paper on customary law courts in Sierra Leone.109 In this position paper,

Fofanah, Secretary of the Local Court Reform Committee, attributed degeneration of customary law courts to several institutional and capacity weaknesses. The most obvious was that whereas the Ministry of Justice maintained de jure control over customary courts through customary law officers, the Ministry of Local Government administered them de facto.110 In reaction, a Local

Courts Reform Committee was constituted. Funded by the UK Justice Sector Development

Project (JSDP), this committee, in partnership with the Law Reform Commission, was mandated to review the 1963 Local Court Act No. 20 and draft a revised bill for parliament. In August

2011, the Sierra Leone Parliament passed a new Local Court Act No. 10, which repealed and replaced the 1963 Act in its entirety.

Among major changes introduced by the 2011 Local Court Act is firstly the establishment of provincial Local Courts Service Committees for the purpose of advising the Judicial and Legal

Service Commission on appointment, transfer, promotion, and dismissal of local court personnel.

Under the 1963 Act, appointment was based on recommendation from Chiefdom Council headed by the paramount chief to the Minister of Local Government. A second important change is

108 These legislations include the Devolution of Estate Act to provide for surviving dependants of testate and intestate persons (2007), the Domestic Violence Act to provide protection for victims of domestic violence (2007), and the Customary Marriage Act that provides for the registration of customary marriages and divorce (2009). 109 A. S. Fofanah (2005) ‘Customary Law Courts’, A position Paper for the Law Reform Commission, Sierra Leone. 110 Fofanah (2005), p.9.

207

removal of local courts from the ambit of the Ministry of Local Government to the mainstream

Judiciary, headed by the Chief Justice. Thirdly, expenses of local courts including salaries for chairmen and other personnel are now paid from a consolidated revenue fund. Formerly, it was the chiefdom councils that paid local court staff and such payments depended on how much revenue the court was able to raise through court fees, fines, and other charges. Now they are paid directly from the national consolidated fund, as with other members of the judiciary, and any revenue local courts collect must be deposited into that fund as well. Fourthly, the new Act makes provision for a secure tenure of service and clear eligibility criteria for appointment of court functionaries. Now court chairmen have guaranteed tenure of office but, according to a

2014 Amendment, they must also be literate in English to qualify for appointment.

The new Act also redefines the linkages between the local court and English law courts. In additional to applying customary law, the local courts are now the court of first instance for minor criminal offenses and all civil cases governed by general law where the matter in dispute does not exceed one million Leones ($250). Moreover, the resident magistrate of a judicial district, who is a trained lawyer, serves as chairman of the District Appeal Court, constituted to hear appeals from the local court. The magistrate sits with two assessors in customary law, but their advice on customary matters are not binding on him as he has exclusive legal authority to make decisions regarding cases on appeal. Although legal practitioners do not have the right of audience in a local court, they are allowed representation once a matter has been brought before the District Appeal Court as well as the Local Appeals Division of the High Court and Supreme

Court. Also, dissatisfied parties in the local courts can take their cases for judicial review to the

Customary Law Officer who is equally trained in English Law, serving primarily as State

208

Counsel for an entire region. In terms of code of conduct, the local courts are guided by the same

Rules of Court Committee whose responsibility is to formulate formal rules to regulate the procedures of all courts in Sierra Leone including rules that prevent malicious, frivolous and vexatious proceedings (Section 145, 1991 Constitution). In order to concentrate the application of customary law in legally-constituted local courts, Section 44 (1) of the Act reaffirms that adjudication without legal authority is an offence punishable by law.

In terms of making the procedural norms of customary justice consistent with the rule of law, these efforts to restructure the state-constituted traditional system are unprecedented. Moving local courts to the judiciary is consistent with the principle of separation of powers and makes for an efficient system as there is now a single judicial structure with local courts being administered by judicial officers. However, it is doubtful whether or when this optimism would translate into reality as the local courts have continued to operate under the status-quo arrangements since

2011 when the new Act was passed. Initially, it is highly unlikely that the judiciary described in

Chapter 4 has the capacity as well as credibility to effectively administer and supervise a total of

292 local courts of the 149 chiefdoms comprising provincial Sierra Leone. As with the English law courts, local court facilities are grossly inadequate. A recent baseline survey (2012) conducted for the Office of the Chief Justice reveals that out of 292 local courts 63 do not have a place to sit court, 127 are without lockup cells, and 180 have no sanitation facilities.111 In terms of personnel, there are 1,496 local court functionaries nationwide including 641 permanent staff

(court chairmen, clerks, and bailiffs) and 855 temporal assistants (courtiers and interpreters) whose salaries up till now depends on how much revenue is raised by the court.112 Local courts

111 The Office of the Chief Justice of Sierra Leone, A Baseline Survey of the Local Courts conducted in March 2012. 112 The Office of the Chief Justice of Sierra Leone, 2012.

209

depend on poorly-trained, ill-equipped, and inadequate chiefdom police force (formerly, court messengers) to serve writs of summons and make arrest. These meagre court facilities including the chiefdom police are actually in the custody of chiefdom councils which continue to be under the Ministry of Local Government.

In addition to capacity problems, control of this primary legal instrument of coercion at the chiefdom level has implications on local power relations which in turn shape the authority and legitimacy of customary justice systems. As shall be analysed in the following sub-section, these implications were noticeable even before the formal regulatory mechanisms proposed in the Act came into effect. But since legal documents may not reflect disagreements in consultative processes before the Act, I gleaned these local stakeholder views from background documents of consultative meetings held with chiefs and corroborated them by observations and interviews conducted in this study. In interviews with traditional authorities and other customary justice actors, respondents were asked about their perceptions of primary justice reform, particularly the new Local Court Act. The responses of chiefs and other traditional rulers are based on their position in the chiefdom authority structure and constitute the main analysis below.

The Local Court Act and Traditional Authorities

From the perspective of traditional authorities, the greatest cost of shifting local courts to a judicial department is political. A senior official of the Ministry of Local Government disclosed in an interview that the decision to take local courts away from chiefdom administration was very controversial and some politicians are quite uncomfortable with certain provisions in the

210

Act.113 Confirming this concern over political costs, another official who was central in the restructuring process states that politicians are frustrated that the regional committees would be headed by a judge who is supposed to be a professional, non-partisan representative of the Chief

Justice.114 It must be remembered as noted in Chapter 3 that before 2011 appointment of local court chairmen was used by politicians to compensate party loyalists and to maintain state regulation of local affairs. Going back to the period of colonial indirect rule, we should also recall that local courts were originally created as extractive and regulatory instruments to be used by traditional authorities for taxation and law enforcement purposes on behalf of the central state. Since then, the administration of local court has been not just (or essentially) about providing primary justice but also related to regulation of the local political economy and through court charges, local taxes, and licences.

Unsurprisingly, the overwhelming majority of 65 traditional authorities interviewed in this research (across the regional divide) are utterly displeased with the decision to move local courts to the formal justice department. Be they ceremonial or modern chiefs and from paramount to town chiefs, these traditional authorities expressed strong disapproval of the move described as an attempt by the central state to undermine the institution of chieftaincy (see chart below for traditional authority structure). Expressions of strong resentments were accompanied with threats of withholding chiefdom support to local courts, denying politicians vote during elections, blocking access to local resources, and refraining from performing administrative roles such as

113 Interview with a senior official in the Directorate of Local Government, Ministry of Local Government and Rural Development, conducted at his office, the 6th Floor of Yu Yi Building, Freetown on 10 June 2014. In responding to questions on this issue, this official wished to speak in a personal capacity and to be anonymous. 114 Interview with Monfred M. Sesay, Principal Customary law Officer & State Counsel, Office of the Director of Public Prosecutions and Consultant on Customary Law for the Chief Justice, conducted at his office, 2nd Floor, Guma Building, Lamina Sankoh Street, Freetown on 14 June 2014.

211

tax collection in local chiefdoms. The majority interpreted the 2011 Act as the biggest step yet taken to erode the authority of chiefs and to incapacitate the institution of chieftaincy in favour of modern local governance structures. The court chairman is a critical functionary in local chiefdoms and therefore legislating that appointment be made in Freetown should be considered a formidable threat, most traditional authorities noted.115 This perception of chieftaincy being undermined by central regulation was held even among a few chiefs who believed that local courts should be independent of chiefdom administration. For them, while it is important to separate the administration of justice from the political authority of chiefs, traditional authorities must have a role in the system because they are custodians of customary law which local courts are supposed to apply.

However, for paramount and other senior chiefs (speakers), a major concern was the creation of parallel authority structures when local court chairmen are no longer under their supervision and control. Concerns regarding the creation of parallel authority structures revolve around alteration of local power relations and chiefs’ authority to enforce bylaws in their localities. Personal background information shared with this researcher revealed that most paramount chiefs across the three regions are well educated, exposed to global liberal norms, and even professed to be liberal-minded individuals. They serve as custodians of traditional institutions because of their statutory mandate rather than a personal belief in the cultural values and local customs that underpin these institutions. Majority of the 13 paramount chiefs interviewed spent a considerable period of time outside their chiefdoms living or working in regional headquarters, Freetown, or abroad before assuming chieftaincy. Even while in office, these chiefs concentrate more attention

115 Interview with Emmanuel Gaima, Ibid.

212

in Freetown as parliamentarians or to make connections with their sponsors / patrons at the national and global levels, sometimes for the benefit of their chiefdoms as whole. Some of them were located in Freetown or provincial headquarter towns for interview during this research. As the two interviewees below illustrate, the crux of the matter in justice reform for them is about control of the power to arrest in their chiefdoms, a crucial instrument for adjudicating disputes between people and over local resources, particularly land and its endowments.

They are bringing problems. When you go and appoint a chairman whom you don’t even know, because there is a special commission for appointment who is away from the community but knows how to speak good English, you are inviting problems. In fact, they are creating parallel leadership structures in the chiefdom. They would come and say I am not under the control of chief, and become so arrogant, making control difficult. Even now where we recommend them, sometimes if I’m not strong enough to control him [court chairman] he feels he has the authority and warrant to arrest and put people in cell, instead of the chief. If the chief wants to do that he has to go through him. You bring somebody to the court to be dealt with but he goes and sees the chairman at night and the case is thrown out. Your authority is being undermined. We have said in our council [National Council of Paramount Chiefs] that these people [court staff] should remain with us even if they are being paid by government. Sometimes we wonder what they want to do with the institution of chieftaincy.116

The Chairman for the National Council of Paramount Chiefs reminds us in this interview that the

Local Court Act is simply another manifestation of a long historical struggle to take away from local people the power of adjudication. Like most paramount chiefs, he is aware of the political motives behind the legislation and highly sceptical about its implementation.

This has been the trend throughout history to move the courts from the control of the chiefs. It started in 1938 when Native Administration was introduced with this court system as one of its three features. From that point, we had gradual changes all tending to move chiefs away from these courts. Under the 1963 Act, the paramount chiefs had some influence because they nominate those who became court chairmen. But today, even before the 2011 Act, that responsibility was shared between the MP, paramount chief, and chiefdom councils. The long and short of this is that the court is being moved from being owned by the people. Its acceptability even when it was not yet moved was in doubt; people did not accept court chairmen and they prefer to go to their chiefs. Now that they say chiefs should be away from it, I foresee problems with this and we need to

116 Interview with Alhaji Sahr SN Kono-Bundor II, Paramount Chief of Gorama-Kono Chiefdom, Kono District and Deputy Chairman, National Council of Paramount Chiefs, conducted in Koidu Town on 29 May 2014.

213

go back to the table and look at how we could make it acceptable to the people. It is their court.117

For ceremonial and other sub-chiefs, most of whom are interested in local customary law, regulation of customary justice is an attempt to introduce the same elitism found in the formal justice system. Since these chiefs are in subordinate position, their concern is not essentially about independent court officials undermining their authority than about preserving local customs and tradition from outside influence. As the chart in Figure 1.2 illustrates, subordinate chiefs are found at the bottom of traditional authority structures and concentrated in the peripheral sections or villages of a chiefdom. There are a few subordinate chiefs who have been exposed to global norms either through education or professional experience and this research noted only 10 out of 50 interviewed, mostly located at the core of headquarter districts.

Representing what Reed & Robinson (2013) call the “encyclopaedia of oral history of the institution of chieftaincy”, this set of chiefs are worried about some modern developments in customary systems such as the introduction of formal literacy requirements to become a local court chairman. A typical reaction from this category of sub-chiefs is to remind politicians about the political cost of their actions, referring to the role of traditional authorities in mobilizing votes during general elections.118

These responses are consistent with the views expressed in numerous consultative meetings and seminars held for traditional authorities prior and during the implementation of Tucker’s

117 Interview with Charles Caulker, Paramount Chief of Bumpe Chiefdom, Moyamba District and Chairman, National Council of Paramount Chiefs, conducted at his office, the Public Service Commission of Sierra Leone, George Street, Freetown on 26 June 2014. 118 Interview with Pa Alimamy Jammah Fornah, Senior Section Chief, Gbendembu Section, Gbendembu-Ngowahun Chiefdom, Bombali District, conducted at his residence in Gbendembu Town on 8 April 2014.

214

Customary Law Reform Project. In series of chiefs’ conferences held between 14 April and 9

May 2003, one of the contentious issues debated by chiefs was transferring the administration of local courts to a judicial department and majority paramount chiefs vehemently rejected the idea.

On the question of chiefs’ courts, chiefs had requested legal recognition and some limited jurisdiction to be conferred on them. In fact, provincial administrative officers who work with chiefdom councils had warned that total ban on the exercise of some limited power of arbitration and adjudication would make it impossible for chiefs to preserve peace and order among their communities.119 These views have strong resemblance with the stance taken by traditional leaders on this issue in majority of stakeholder conferences and dialogue meetings organized by civil society groups which this researcher was opportune to attend. On 24 May 2014, Green

Scenery in collaboration with a group of international NGOs convened a Conference of

Paramount Chiefs in the southern district of Bo to discuss the possible impacts of large-scale acquisition of provincial lands in line with the ongoing Constitutional Review process. Most paramount chiefs used this forum to reiterate their role as custodians of land in the provinces and to register their indignation over justice reform programs that are targeted toward undermining their judicial authority.120

119 Customary Law Reform Report by Peter Tucker, August 2005. See also reports of the regional consultative seminars on Local Court Reform and Review of Customary Law held in Bo Town for the Eastern and Southern Provinces on the 25th and 26th February 2002, and in Makeni Town for the Northern Province on the 28th February and 1st March 2002; reports on the Visits to Sierra Leone of Peter Tucker, Consultant of the Sierra Leone Customary Law Reform Project (7-28 November 2001 and 16 April – 25 May 2002). Other related reports include those of a Consultative Seminar on Local Courts held at Lungi Mahera on 9 August 2001 and a combined report of consultative seminars held in Kambia, Koinadugu, Port Loko, and Bombali on the finalization of the amended Local Court Act No. 20 of 1963, compiled by Abou Bhakarr Binneh-Kamara. 120 This researcher was able to record live statements and discussions in this conference while serving a participant observer. The researcher was secretary for Bombali District in a group session that divided paramount chiefs according to their respective districts.

215

Following a series of consultations on chieftaincy reform, the PICOT’s Chiefdom Governance

Reform Campaign Team also convened a roundtable for executive members of the National

Council for Paramount Chiefs, a month later.121 Held on 27 June 2014 in Makeni Town, the main objective of the meeting was to develop a joint position paper between paramount chiefs and civil society organizations on chiefdom governance to be incorporated into the Constitutional

Review process. Again, this was a very tense meeting with paramount chiefs attempting a walkout in protest of the draft civil society paper which requested (among other things) universal suffrage for chieftaincy elections, limited tenure of office for paramount chiefs, and enforcement of laws that prohibit chiefs from adjudicating local disputes. Of the approximately 30 executive members present, there was unanimous dismissal of what paramount chiefs considered as an imperial agenda, implemented by civil society groups acting as paid agents of Western donors to weaken customary institutions in Sierra Leone. This roundtable was one of the first meetings in which civil society groups openly called for comprehensive chieftaincy reforms and chiefs were equally unequivocal in expressing their suspicion of the civil society agenda, as most of them had stated during in-depth interviews conducted for this study.

There is nothing truly unusual about chiefs wanting to preserve their judicial authority or linking the very survival of chieftaincy to this authority. As previously discussed, the origin of this link is modern and most paramount chiefs profess their commitment to liberal-democratic principles.

But observing these civil society meetings during this research, coupled with in-depth interviews with traditional authorities confirms the literature on neo-institutionalism that draws attention to the role of institutions in the distribution of power (Hall & Taylor 1996). Beyond enhancing

121 PICOT stands for Partners in Conflict Transformation, a coalition of civil society organizations interested in peacebuilding and governance reform generally, but with specific focus on local governance.

216

efficiency, institutional reform is fundamentally about redistribution of local power. Therefore, the role and position of power-holders (especially those who seem threatened) is central not just as target for reform but also in shaping the reform process, dynamic, and outcomes.

Data in this study confirm that beyond superficial expression of liberal reforms, the main incentives for action are the interests of local political coalitions. Judicial officials disclosed in interviews that there are competing agendas behind certain reform programs. For example, after removal of the literacy requirement in the Local Court Act, it was reintroduced through a private amendment bill by politicians who could then use this requirement to replace illiterate chairmen with their own qualified party loyalists. Likewise, paramount chiefs have been allowed at least one seat on the regional Local Courts Committees as a form of appeasement to them considering the political cost involved in their outright removal from the administration of local courts.

Officials interviewed also state that Section 44 (2), which permits chiefs to conduct “arbitration or like settlement” with the consent of the parties, was inserted into the new Act as an escape clause to protect traditional authorities.122 The government has been unenthusiastic about implementing the Act, with the formal launching of regional committees taking place in 2014, about three years after the legislation was passed. Chapter 4 made clear that delay in implementing institutional changes is not simply about lack of political will but often a strategic move when certain reforms do not align with the interest of elected political elites.

For those charged with the responsibility of supervising local courts, it is true that their weak capacity to monitor coupled with the centralized nature of the justice system makes it difficult

122 One of these inside sources are interviews with customary law officers.

217

for them to prosecute someone who violate the “no adjudication without authority” rule. No prosecution for this violation can be instituted without the consent in writing of the Director of

Public Prosecutions who is based in Freetown. Yet for most judicial officials interviewed on this matter, the central issue is that the institution of chieftaincy remains very powerful in the contemporary politics of Sierra Leone and there are influential people who have vested interest in the stability of that institution. In addition, it must be noted from Chapter 3 that the institution of chieftaincy itself wields enormous power upcountry, particularly in the north-eastern region where chieftaincy is connected to spiritual authority and powerful secret societies. Interviews with formal justice actors and paralegals indicate that their relations with chiefs were often shaped by perception of chiefs’ spiritual power in addition to the administrative authority conferred upon them by the government. When you ask judicial officials why there is little or no evidence of prosecution of illegal adjudicators (even though they claim that many chiefs continue to hold courts), the usual response is a deep sigh of hesitation accompanied by these kinds of rhetorical questions.

If you decide to criminalize the chiefs’ courts, be prepared to arrest 149 paramount chiefs. Which officer would come and arrest Massa Yalie Tham II (a paramount chief in the northern district of Bombali) in his own chiefdom and walk away with him in handcuffs? So you don’t legislate things you know are practically impossible to implement. You don’t. Come and arrest them [paramount chiefs] and put all of them in handcuffs in a single day and see which state you would govern. So they are mocking the law because it cannot simply be enforced. It won’t work as the institution is traditionally entrenched and that’s what the people know and you cannot touch it.123

123 Interview with Chernor MB Jalloh, Barrister and Solicitor of the High Court; Director, Access to Justice Law Center; and Head of the Law Department, University of Makeni, Sierra Leone, conducted at his residence, R & B Hotel, Off Binkolo-Kabala Highway, Bombali District on 26 May 2014.

218

This local court clerk, who attested to the prevalence of chiefs’ courts in his judicial district, equally contemplates the almost impossible task of prosecuting paramount chiefs who adjudicate disputes that should be brought before local courts.

The Act is clear that adjudication without authority is a crime. But who are you going to serve a criminal warrant for doing so? If you want to incriminate chiefs, you would jail all of them, starting with the paramount chiefs. They are affecting the work of the court. But who would sue them? Who would prosecute them? Can the court chairman prosecute the paramount chief or section chief? Chieftaincy is not an easy office to attain. So if you say you would go strictly by the Act and rule of law, you would jail all of them.124

It must be noted though that there are other local stakeholders who welcome the Local Court Act as an important catalyst for a new balance of power in local chiefdoms. Among these community figures, the most vocal are members of the opposition ruling houses, young community leaders, and literate residents working for local NGOs, civil society organizations, or local government.

This constituency favours the implementation of the Act mainly because of its potential to curtail the political authority of ruling houses as well as limiting their influence over the adjudication of disputes. In their interviews, most members of opposition ruling families across regions expressed hope that chairmen appointed by an independent regional body would be able to adjudicate their cases without interference from the paramount chief. They also aspired for positions in the local courts so as to claim some influence over the redistribution of resources and conflict resolution in their localities. Youth and women leaders, who are not part of the local ruling coalition, also viewed the changes in local court administration as an opportunity to enhance their authority, particularly in terms of conflict resolution between their peers and traditional rulers. As this comment illustrates, many of these young leaders have high school

124 Interview with David Y. Kabbia, court clerk of Local Court III, Rogbaneh Road, Bombali Shebora Chiefdom, Bombali District, conducted in his office, Makeni Town on 21 March 2014.

219

education which gives them an advantage to benefit from institutional reforms aimed at strengthening the rule of law and human rights in their local communities.

The new requirements are in place. It is good for both the clerk and chairman to be literate. This literacy qualification should be extended to members as well. I think it is a question of power. Chiefs assume that with their power they can do anything they feel like doing. But it is not right. I think chiefs’ court should be limited to land, cattle, and witchcraft cases; they should refer other matters to the local court.125

This reconfiguration of power relations is particularly evident in terms of the local discourse about human rights and responsibilities. Since the end of civil war, human rights activists have made inroads into rural communities to raise awareness about individual human rights issues.

Most of these activities are carried out by paralegals who are “persons equipped with basic knowledge of the law and who then provide legal assistance their community through organizing the community to fight for their rights” (PICOT 2008, 13). Although a paralegal is not a lawyer, he or she is expected to possess basic skills in conflict resolution in addition to rudimentary knowledge of the legal systems through which laws are applied. Among the most prominent paralegal service providers in Sierra Leone is Timap for Justice which has about 39 paralegals in provincial areas engaged in core community-based paralegal programs and other complementary primary justice services. Another notable paralegal service provider is the Network Movement for Justice and Development (NMJD), a civil society organization which operates in 8 of the 12 administrative districts of Sierra Leone. Community-based paralegals are appointed mostly from

125 Interview with Abibatu Kamara, Chiefdom Chairlady, Gbendembu-Ngowahun Chiefdom, conducted at her residence, Gbendembu Town on 13 April 2014.

220

literate members of the local community and perform the following core functions: legal advice, civic education, rights monitoring, advocacy, and small-scale mediation.126

For paralegals and their clients, human rights advocacy is an instrument to access power and privileges denied them by traditional authority structures, especially those governed by elders and traditional secret societies. While such activism is geared toward promoting international human rights treaties ratified by the government, the real impact has been a redistribution of decision-making power for the benefit of those hitherto disadvantaged by traditional institutions.

Paralegal services are free of charge and paralegals assist local residents to access the formal justice system for cases that require legal redress. Also, organizations like Timap backstop their paralegals with a small group of lawyers which provides threat of litigation for severe cases of injustice involving traditional authorities.127 Meanwhile, local chiefs feel threatened not only by the “removal of bread from their mouth” (local Sierra Leonean parlance) but also by the empowerment of people through legal instruments that supersede customary law. Paralegal services reduce the number of cases brought before chiefs’ courts while lawyers tend to question their authority in a court of English law. This politics of human rights activism was apparent in this interview with a member of PICOT’s Chiefdom Governance Reform Campaign Team.

The whole aspect of human rights is about power balancing. These people [chiefs] were so powerful that they do not want to leave any of these powers and human rights is coming in to stabilize the system. And they do not like that and they are resisting these things. But they have no choice; we have to go ahead. All we are doing to sensitize the population would not have been necessary if we had a literate population. If the population was literate all you need to do is your research, put it out there, and people read it and then they start asking questions. But we are not there yet; so we have much work to do than in other areas where you have a literate population. So some deliberately

126 Most paralegal training manuals contain detailed description of paralegal activities and copies of relevant international human rights treaties and domestic legal documents (e.g., see PICOT’s Training Manual for Human Rights Paralegals, prepared by the Center for Public Interest Law (CEPIL), Accra, 2008). 127 Interview with Simeon Koroma, ibid.

221

don’t want to hear about human rights; their perspective wherever you go is that human rights has created more problems for people.128

Concerns over this social disruptive tendency were equally expressed by chiefs who regarded human rights activism as undermining to chiefdom administration. It is important to emphasize though that some of these concerns were confirmed by other local residents who also seemed critical of the growing influence of human rights discourse in their local communities. One of the areas of concern relates to the one-sided nature of human rights sensitization—the emphasis on rights devoid of civic/communal responsibility. Many local residents who participated in this study (even some activists) attributed the breakdown of social institutions and informal trust networks (e.g., family and kinship relations) to heightened human rights consciousness following the end of civil war. Awareness about individual human rights is blamed for the breakdown of reciprocal obligations, weakening respect for traditional authorities, and the erosion of certain traditional practices. This comment by a youth leader, who was critical of powerful paramount chiefs, suggests that while global justice norms may empower a new set of actors in local communities, such changes do not mean a total repudiation of traditional institutions.

Throughout his interview, this respondent wanted the institution of chieftaincy to be both respected and held accountable in the same way as he wanted those who claim individual rights to also take responsibility for social order.

I support the claim that human rights is responsible for the unruly behavior of some youth. Why? Because had it not been for human rights, they [elders] would have controlled us according to their wish. There would have been no hesitation for them to throw us in jail for a month. I am glad I know about human rights. But let me tell the bad thing which has happened. They have told people about their rights but failed to also inform them about their responsibility to fulfil those rights. They told people about freedom of movement but failed to let them know that a local curfew can be passed to

128 Interview with Paul Koroma, conducted on 6 June 2014, ibid.

222

catch a thief in their community. These messages should have been communicated side by side.129

These considerations of local power relations, traditional authority, and power hierarchy are more visibly observable in the day-to-day interplay between primary justice norms (official and unofficial), as will be illustrated later. The reaction of traditional authorities to the 2011 Local

Court Act is not a new phenomenon. As far back as 1963 when central governments began to centralize the administration of local justice, there has been resistance often in the form of parallel customary justice mechanisms operating outside but in relation to the state-recognized system. Several attempts to criminalize these mechanisms have so far failed to eliminate them.

Instead, in this study of their interaction I found that intensification of government efforts to incorporate customary systems into the formal judiciary often boomerang into making their unofficial counterparts more relevant for local dispute resolution. The more that traditional authorities feel they are losing control of official customary systems, the more they withhold their traditional authority from those systems, preferring instead to operate non-state parallel structures. Comparing these parallel justice systems and examining relations between them is analytically useful as they are alike in many respects apart from their juxtaposition on questions of legality, formalization, and centralization. Most of the interactions discussed below are informal (i.e., not officially defined or recognized) and therefore interviews with primary justice actors were heavily complemented with close observations of the practical ways in which they administer justice. The major findings below will show that the patterns of interaction have been fairly consistent across the three provincial regions, the only discernible source of disparity being the position of local stakeholders in the traditional authority structure which correspond to

129 Interview with Moses Santigie Kana, Cheifdom Youth Leader, Safroko Chiefdom, conducted at his residence, Makeni-Kabala highway, Binkolo Town, on 6 April 2014.

223

differences between core and peripheral locations of a chiefdom. The findings begin with a comparative analysis of the state-constituted and unofficial systems, based on my consistent observations rural conflict resolution processes.

Interaction between Official and Unofficial Customary Justice

As discussed, there are two categories of customary justice in Sierra Leone. There is the legally constituted local court system which is the official institution for the application of customary law, i.e., rules of law applicable to people ordinarily resident in provincial areas. The other category of customary institutions constitutes unofficial dispute resolution mechanisms, administered by the traditional authorities. As shown in figures 5.1 and 5.2, the major differences between official and unofficial customary justice systems relate to the degree of informality, level of concentration, and questions of judicial authority. Courts constituted by chiefs, secret society heads, tribal headmen, and other traditional authorities are illegal both prior to and after

2011.130 This lack of legal status means that mechanisms established by chiefs are not a formal court of record, their decisions are not officially recognized and cannot be appealed against in a court of law, and their operators are not formerly trained to administer justice. That they do not have a warrant of legal authority also implies that their judgments could be set aside in a court of law and their very existence is against the law. Where charges are levied, the amount requested is not standardized and the absence of a formal receipt of payment often implies that monies collected could not be formally accounted for. Parties are not obliged by law to comply with an invitation to attend and abide by decisions made in chiefs’ court barrays.

130 In order to distinguish local courts from chiefs’ court, the latter will henceforth be referred to as court barray.

224

Figure 5.1: Customary Justice Systems Before 2011

Category Types of dispute Administration Degree of Level of Judicial institutions informality concentration authority Official Local courts Ministry of Informal Medium Legal Local (involvement of Government chiefdom councils) Unofficial Chiefs’ barrays, tribal Community Informal Low (available in Illegal headmen barrays, groups and every community) secret society meetings, leaders religious institutions, committee of youth leaders, and council of mammy queens

Figure 5.2: Customary Justice Systems After 2011

Category Types of dispute Administration Degree of Level of Judicial institutions informality concentration authority Official Local courts Office of the Semi-formal High Legal Chief Justice (regional court committees) Unofficial Chiefs’ barrays, tribal Community Informal Low (available in Illegal headmen barrays, groups and every community) secret society meetings, leaders religious institutions, committee of youth leaders, and council of mammy queens

Based on community observations in this study I found that the process of dispute settlement in chiefs’ courts is largely based on a common sense logic with heavy reliance on witnesses, cross- examination, and available evidence. A particularly key component of local dispute settlement is the role of witnesses who are called, after both parties have stated their respective versions of a matter, to obtaining a third party account more so on areas of discrepancy between the two original versions. Another important element is that parties are allowed to bargain between themselves on areas of disagreement, each promising to concede if their witnesses say something contrary to their initial statements. Witnesses are not allowed to be present when parties are

225

making their statements so that they may not know what the court has heard and, before they speak, parties are asked to offer them a small amount of money upon which an oath is taken to say the truth. Cross-examination of parties and their witnesses is carried out by the panel of elders, the parties themselves, and members of the audience.

Sometimes the jury’s decision is simply a confirmation of what the audience and parties already know based on the testimonies of their witnesses. In cases without proper evidence, the memory and experiences of elders, the use of traditional medicine, consultations with family members, and the community as a whole are taken into consideration in the decision-making process.

Minor disputes are settled by town chiefs or available family heads while major ones are transferred to the section chief, speaker, and paramount chief, depending on nature of the dispute.

A presiding panel for chiefs’ courts is informally constituted and they meet whenever parties to a conflict and their witnesses are available, taking into consideration farming seasons, work schedules, and other daily commitments. Sub-chiefs are more readily available compared to paramount chiefs who may be located in headquarter towns and often busy with their connections in Freetown or provincial headquarters. Normally, each chief has a palaver hut

(barray) in his compound, where elders and the general public are welcome to meet to discuss communal matters, make collective decisions, and resolve disputes. Nonetheless, unofficial conflict resolution meetings could be convened anywhere including public squares, private backyards, verandas, or disputants’ homes.

226

Conversely, the main procedural norms of local courts gravitate towards the central state system and the highest form of concentration of their control took place when local courts were fully incorporated into the formal judiciary. As linkages with the formal justice system are established through appeal mechanisms, local courts are expected to operate according to formal rule of law, to be guided by state legislations, and to apply written customary laws which are not repugnant to formal statutes. Customary law in Sierra Leone is not yet codified but the process is ongoing and local courts already have a body of formal rules (e.g., Acts of Parliament, Rules of Court, and Gender laws) which are supposed to guide their application of customary law. For instance, adjudication of disputes relating to customary marriage and divorce, domestic violence, and administration of estate must be in conformity with the gender laws passed in 2007 and 2009. In summary, while local courts are portrayed as the official instrument to apply local customary law, their administration is based on laws passed by the Sierra Leone Parliament in Freetown.

Acting like a central state also requires the country’s official customary system to bureaucratize its operations through formal rules of conduct, differentiation of duties, and written record of official activities. The local court clerk, who is responsible to issue writs of summons and write down statements made before the court, represents a symbol of state bureaucracy. In most places where the chairman and court members are illiterate, written statements may not be consulted as the basis for decision-making or they may rely on the clerk’s interpretation of what has been recorded. The recent baseline survey of local courts in Sierra Leone (2012) reveals that written statements are not dependable as clerks are poorly trained and record keeping is deplorable. But the court clerk must be able to scribble down notes whenever people make statements before the court to give the process a veneer of formality. Recording statements coupled with other

227

documentations (ledgers, writs of summons, receipts, letterheads, and official stamps) is an essential feature of a formal court.

Moreover, local courts have the backing of state coercive instruments to enforce court orders including the authority to imprison persons for a maximum of six months and to charge someone for contempt of court (despite half of them do not have lock-ups). Although the chiefdom police force is separate from the regular police, its uniform and basic law enforcement tools (cells, handcuffs, and batons) are an imitation of the national police at local chiefdom levels. Despite being ineffective, the NA police (Native Administrative police as they are popularly known) have a warrant of coercive authority which adds to the court’s official status. However, it is this coercive authority (whether real or perceived) that further necessitates the adoption of formal due process regarding how local courts should operate. And as these local courts become more procedural, they are seen as resembling a formal court, a perception that in turn has implications both for their social relevance and interaction with parallel unofficial systems. Observing concrete efforts to tackle minor crimes and resolve civil disputes by these parallel local institutions was crucial to revealing this complex primary justice dynamic.

Kassi: Local Criminal Justice

Considering the capacity deficit of Sierra Leone’s criminal justice system, the cooperation of customary dispute mechanisms (official and unofficial) is required to deter, investigate, and prosecute crime nationwide. As the official primary justice system in local chiefdoms, local courts are expected to deal with minor criminal matters while transferring to the regular police or magistrate courts cases beyond their jurisdiction as stipulated by the Local Court Act.

228

Nonetheless and as noted above, these courts are operational only in headquarter towns and their operation is frequently fraught with logistical problems worse than those confronting the central justice system. Even for those deemed to be relatively effective, their centralization means they are not easily reachable from peripheral areas of a chiefdom where the majority of rural population reside. Some remote chiefdoms have only one police post with 2 personnel who are expected to patrol the length and breadth of the locality. During this study, there were repeated stories by local residents of police investigation being hampered by distorted evidence and disappearance of suspects by the time officers are able to get physical access to outlining areas where a crime was committed.

Regardless of this paucity of formal criminal justice, rural areas covered in this research are not entirely devoid of law and order. Outside the state system, I found that one way informal justice has been conducted is through what local communities call Kassi or a local fine regime. Kassi is a form of social control synonymous to “citizen’s arrest” where private citizens are allowed to take action to forestall the conduct of misdemeanours that would potentially breach local peace.

But unlike “citizen’s arrest” which often requires individuals to physically restrain persons committing criminal acts, Kassi is simply a verbal pronouncement by a local citizen of a fine, traditionally payable in customary items (e.g., food stuff, chicken, goat, etc.). Anybody can impose this fine as long as that person is physically present where the infraction is or about to be committed. By pronouncing a fine, you are making public declaration that a shameful act against acceptable social norms has been committed (known as bi yamunga in many local dialects).

According to traditional authorities interviewed, Kassi has the following marked features. Firstly, the same amount of fine is imposed on every party to a dispute or infraction, irrespective of their

229

social status, source of conflict, or extent of involvement. In other words, there is parity in terms of liability. Secondly, kassi is essentially about preventing or halting an offence (to cool down a situation), completely separate from and prior to settlement of the matter in question. You are fined on-the-spot before trial, contrary to the cardinal rule of due process which presumes a defendant innocent until proven guilty before a court of law. Finally, as a deterrent mechanism, kassi may be effective even in the absence of an infraction when the threat of penalty compels community members to comply with norms of acceptable behaviour. Based on their scope and enforcement mechanism, kassi can be categorized into two broad classes.

Group Kassi. A group category is implemented within specific group settings ranging from households, women or youth groups, to broader sociocultural associations in the chiefdom. In this context, group members institute kassi as a regulatory mechanism to solve collective action problems, ensure group cohesion, and promote the group’s overall goals. For legitimacy reasons, the rules of kassi are normally set by finding broad consensus among members on which infractions should warrant a fine, the amount to be levied, and how it should be paid. For example, most rural agrarian communities in Sierra Leone have informal labor groups (known as companies) which are young men’s clubs that enter into unwritten contracts with private people to provide manual labor on their farms and at the same time making such collective workforce available to each other on rotational basis. Women have similar groups through which they mobilize financial resources that are distributed rotationally among members (osusu). Here, kassi may be used to impose a penalty on members who refuse to honour their commitment after receiving support from the group or who are engaged in certain actions (e.g., fighting, rudeness) that have potential to undermine group solidarity and mutual trust. Once such consensus has

230

been reached on the nature of infractions and penalty, no member of the group is exempt, even those in leadership positions. In private compounds, kassi is binding on both the landlord and tenants and fines may be used to prepare a meal shared by household members including disputants who would eat in the same bowl.

Since these are auxiliary groups are outside chiefdom administration, enforcement of this class of kassi depends almost entirely on social pressure from group members and their associates. As the fine’s intention is to ensure compliance with acceptable norms, members who desist from their action immediately kassi is imposed can negotiate the penalty, promising not to violate the group’s rules in the future. Members who continue their action after kassi has been imposed are considered recalcitrant, necessitating not only an increase in the penalty but also moral reproach and condemnation by members. Apart from the burden of payment, kassi has serious reputational costs in closely-knit communities where an individual’s action is linked to his family and kinship relations who may have to share the penalty. In these communities, group membership is mostly obtained by such social connections and, therefore, intransigent actions bring shame to those relations who may have recommended your membership. This connectedness also means that those relations are obliged to put pressure on you and it is easier for your action to attract the attention of the broader community with spill-over effects for other relationships in the locality.

Community Kassi. The second category of kassi, as an official penalty for violating a community rule, is mainly imposed for the purpose of chiefdom administration. Chiefdoms are governed through bylaws which are specific rules derived from general customary law, agreed upon in a community meeting, registered at the Native Administration, and communicated to the general

231

public through a town-crier. Bylaws change from time to time to respond to particular situations but they have to be in accordance with the customs and tradition of the chiefdom for them to garner traction within the community. For example, laws that proscribe certain behaviours are in line with long-standing taboos in the chiefdom. Community kassi can be further divided into three sub-categories.

 Peaceful order kassi is designed for the purposes of maintaining law and order within a

chiefdom. For examples, almost all chiefdoms have kassi against fighting, public insult,

disrespect for authority, and the use of abusive words. These actions are proscribed

because of their potential to escalate into violent interpersonal relations that may in turn

breach community peace. Insubordination to traditional authority is frowned upon

because it undermines the ability of chiefdom administrations to prevent the commission

of crimes or their escalation.

 Social order kassi is intended to preserve social harmony so as to prevent conflict

between people sharing the same social space. For example, some communities that are

dependent on a single stream for domestic purposes may have bylaws demarcating

portions of the stream as exclusive zones for male or female members. Similarly, there

are separate secret society bushes which are not open to non-members and what is

discussed in those places must not be disclosed to the public. The boundary separating

these exclusive zones from mutually shared spaces may not be apparent to an outsider but

are social norms well-known by indigenes.

 Communal order kassi is a penalty levied against a community member who fails to

participate in communal projects that have been agreed upon in community meetings and

announced in advance by a town crier. In most rural communities, social development

232

projects (such as brushing footpaths, constructing local bridges and roads, cleaning

graveyards, etc.) are self-help initiatives that mobilize community members to provide

manual labour. In order to ensure optimum community participation and avoid free

riding, kassi is imposed on members who absent themselves for community projects

without valid reasons. This sub-category is also useful for discouraging impunity as well

as deterring other people from shirking collective projects in the future.

Like the group category, community kassi can be imposed on-the-spot by any community member and the social order sub-category may be exerted corporately by the auxiliary group affected by an infraction (e.g., secret societies). In rural communities, pronouncing this penalty to de-escalate a situation is considered an act of responsible citizenship, and the individual who does so deserves a portion of the amount levied. What makes community kassi distinct though is that it requires the backing of traditional authorities in a number of important respects. Initially, traditional authorities symbolize the local state; kassi is placed in their name and they are responsible to ensure that the fine is equitable, well-intentioned, and enforced. According to customary law of most communities, it is the duty of chiefdom authorities to ensure that someone is fined according to the gravity of a crime and in cognizance of the individual’s capability to pay. For instance, chiefs are expected to have the ability to distinguish between abusive and insulting words, to discern the earning status of their people, and to be lenient where offenders demonstrate respect for authority and regret their actions. It is against customary rules of proportionality and reasonability to levy kassi worth a goat when the person cannot afford a chicken as well as to insist on penalty when an offender acknowledges wrongdoing and pleads for leniency.

233

Also, chiefs are responsible to ensure that there is no malice aforethought; that is, you are not making a pronouncement to hurt someone intentionally. This is why kassi focuses mainly on violation of a clearly stipulated community rule rather than the substantive dispute that may have led to such infraction. If you say your act of public insult is directed at no one, it is assumed that you are insulting the chiefs who represent the community and fines not paid for on-the-spot double as they are taken from one level of chiefdom authority to the other. While some fraction of the original fine is supposed to go back into a community fund (for emergency situations such as attending to visitors), the added amount is kept by chiefs as their incentive for enforcing compliance.131 This tendency to incur higher charges in front of traditional authorities compels people to buy kassi where it is imposed and to cease their actions immediately a pronouncement has been made.132 Majority of respondents (including ordinary residents) attest that kassi is effective in deterring conflict escalation because it imposes a financial burden on defaulters.

However, there is a link between community kassi and the formal criminal justice system, which makes the state-constituted local courts indispensable to modern chiefdom administration. Kassi is limited to small-scale infractions against bylaws of particular communities such as land disputes, interpersonal relationships, and intra-communal feuds. Serious offences in violation of state laws are supposed to be referred directly to the regular police for formal investigation and these matters are known as “blood cases” (e.g., fighting, wounding, sexual assault, murder) in local communities. But the fact that local chiefs are the closest available authority means “blood

131 Although the intension is well-meaning, there are serious concerns in some communities over the management of community kassi funds. 132 Information on kassi were generated almost exclusively from in-depth interviews with traditional authorities and civil society activities working with the institution of chieftaincy in Sierra Leone. Insights about the way this traditional mechanism operates and the customary law that regulate its operation was gathered mostly from ceremonial and subordinate chiefs who have been in chieftaincy for a considerable period of time.

234

cases” would be taken to them as the first port of call and some community members may want them to intervene for internal community settlement. It is also possible for these criminal offences to overlap with infractions of local customary law. For instance, it is a taboo in some communities to spill the blood of a neighbour or to have sexual intercourse in a bush because they believe such abominable acts are displeasing to their ancestors and may adversely affect agricultural productivity of an entire community. When serious offences like rape and wounding are linked to local taboos, their occurrences invite community outrage and chiefs have the advantage of proximity to direct people to the appropriate formal authorities. Some cases are directed to a nearby police station or health facility either because of uncertainty about the extent of injury, respect for state law, or increased awareness raising by local NGOs (see next chapter).

Likewise, police officers investigating criminal matters in local chiefdoms require the cooperation of chiefs who are already familiar with the case, relevant evidence, and may know the parties involved. This cooperation cannot be overemphasized considering the fact that most undercurrents of civil war in the Manor River basin were linked to unresolved grievances in local chiefdoms ranging from excessive fines, succession disputes, illegitimate chieftaincy, and excessive state repression of local rebellions. Chapter 3 demonstrated how local conflicts could either degenerate into large-scale violence or provide a launch pad for centrally planned insurrections. That chapter also revealed the centrality of secret societies in warfare and security services of local communities from pre-colonial to modern times. It is in acknowledgment of this connection between local and national stability, that the country’s post-war national security architecture now makes provision for district security committees (Disecs) which are expected to liaise with chiefdom committees for intelligence gathering and coordination of security at local

235

community levels where formal security agencies are unavailable. Baker (2010) is among the first authors to draw our attention to this link in a systematic study of the nexus between state and non-state systems in the areas of intelligence gathering and security operations.

In the context of minor crimes or infractions, chiefs and local residents confirmed that kassi represents a major source of litigation in local communities. As noted, fines are usually imposed on both parties to a dispute, regardless of the substance of the case and who is responsible for its outbreak in the first place. However, when one party feels they need not to buy a kassi, the matter is forwarded to traditional authorities for settlement with complainants choosing the individual who pronounced the fine as witness. If the defendant concedes to be at fault, he may be required to refund the complainant’s expenses including the original fine. Majority of cases brought to the attention of traditional authorities involve some form of kassi which one party did not want to pay in vain.

Moreover, if you are unable or refuse to pay a community kassi, chiefs can transfer the case of infraction to local courts in the chiefdom to be prosecuted as a criminal offence. Filing a criminal summons through local courts is free of charge with chiefdom police performing the role of a prosecutor while chiefs appear as witnesses in the matter. When local courts were under chiefdom councils, chiefs had an incentive to transfer some cases to these courts because the revenue generated was to be deposited into the chiefdom treasury. Since local courts can lawfully implement their own orders, their coercive authority can be used to enforce the payment of kassi when offenders fail to comply with chiefs’ orders. But in doing so, the state-constituted system reinforces the modern institution of chieftaincy insofar as this punitive system can be

236

relied upon to enforce decisions that cannot be administered through social pressure or moral persuasion. The extent of this reliance on formal coercion correlates with the degree to which customary institutions could be considered informal and unofficial. Excessive use of coercion, especially by chiefs who lacked moral legitimacy, led to abuses and grievances which some researchers have linked to the outbreak of civil war in Sierra Leone (Fanthorpe 2005; Jackson

2011; Maru 2006; Richards 2005).

In terms of this study’s broader question about patterns of interaction, the use of kassi to tackle crime reveals that informal conflict resolution has thrived in the absence of an effective criminal justice system administered by the state. In fact such informal mechanisms seem highly operational, legitimate, and efficient in areas where state institutions are less visible because external influence is limited in such context. For example, kassi in remote villages operate mainly as a social mechanism with payments made in customary items unlike the use of coercion and cash payments in commercialized areas of a chiefdom. But more importantly, the findings of this research indicate that official and unofficial justice mechanisms have interacted in mutually reinforcing and undermining ways. Although weak state capacity reinforces reliance on an unofficial mechanism of social control, state coercion is resorted to when moral persuasion proves ineffective in certain circumstances. Appropriating state authority to enforce kassi may empower customary justice system but coercion has a potential to undermine the social mechanisms upon which informal institutions are normally based. Kassi is a legitimate tool of social order when it is enforced within the context of social pressure and the moral authority of chiefs who are seen as symbolic representation of the local state. It becomes prone to abuse and loses credibility when its enforcement becomes contingent on state coercion. Thus, the

237

interaction show an inverse relationship in that the more customary justice systems are exposed to modern means of social control the more such system lose their authority, effectiveness, and social relevance. This relationship between traditional authorities and local courts becomes more complicated in the context of civil matters, an issue I now explore.

Civil Dispute Resolution

All unofficial dispute resolution mechanisms share the features of informality, flexibility, and accessibility discussed above. In terms of social relevance, they are linked to indigenous institutions, reflective of sociocultural conditions, in line with customary law, and presided over by the same traditional authorities. As with the chiefdom authority structure, unofficial conflict management institutions are hierarchically organized beginning with the village chief and upwards to the paramount chief whose decision is often final. Yet, this research notes that unofficial customary dispute mechanisms can be either mediation or adjudicative.

Mediation mechanisms. From observations of chiefs’ courts, mediation mechanisms are adopted when the goal of dispute resolution is reconciliation and restoration of social harmony. Although the dispute in question may be between two individuals, the objective of dispute settlement is to restore fractured relationships not just between those directly affected but also involving their families, kinship, and the entire community. When traditional authorities apply mediation methods, they make it clear to disputants that each party can take the matter elsewhere if dissatisfied with their decision and that they are willing to appeal on behalf of whosoever is found wanting in the matter. As most traditional authorities and community members have stated in this study, the outcome of mediation processes is usually one in which local leaders temper

238

justice with mercy and penalty with conciliation. Instead of one party winning a case at the expense of their opponent, the outcome is typically a compromised win-win situation. One party may emerge as rightful claimant and some restitution of property may be requested; yet, each party is persuaded to reconcile in the interest of long-term relationships through moral parables, past stories, relevant genealogies, and counsel by respected elders. In fact, the proceedings may be shortened if the defendant and / or family are not interested in disputation and request elders to appeal, on their behalf, to the complainant. The same process can be applied when a matter before the formal justice system (police, local court, or magistrate court) is withdrawn by parties who prefer a non-adjudicative out-of-court settlement by traditional authorities. Usually, this form of informal dispute resolution is free of charge, although satisfied disputants may present customary gifts to compensate traditional authorities for their time or to show appreciation for an amicable settlement.

Mediation is consistent with the literature on restorative justice which many authors, reviewed in

Chapter 2, consider to be the very essence of traditional justice systems (Harper 2011; Huyes &

Salter 2008; Isser et al. 2009, 2011; Kotter et al. 2015; Tamanaha 2015). In rural communities across all provincial regions in Sierra Leone, there is a strong belief that taking civil disputes to court is against a family ordinance of internal conflict resolution. Taking disputes to formal courts can put families, marriages, and communities asunder, most of them believe. The very act of formerly summonsing a community member is viewed as an act of enmity which may have an adverse ripple effect on broader kinship and community relationships in the future, as this section chief insists.

As native people, we do not believe in going to court to settle every dispute and spend money in the process. A dispute between brothers is brought to a chief who resolves it

239

without bad name or financial loss on either side. As soon as, one of those brothers takes the matter to court, it brings in enmity for the simple fact that it is a court. If your brother takes you to the police or court, he is no longer your brother. He intends to give you trouble and to tarnish your character for good. This is why it is a bad idea to take every dispute to court—it creates enmity.133

The quotation draws attention to both the financial and social costs of resolving civil disputes through formal judicial processes. It also re-echoes the argument made in Chapter 4 about credibility and trust deficit in the formal justice system, a situation that cannot be remedied just by capacity building, training, and new laws. As long as the central state remains disconnected from the social ordering of local communities, strengthening state institutions would be perceived as a top-down imposition of an expensive system that lacks cultural relevance in poor rural communities. Ensuring that local courts operate according to formal rule of law does little to build public trust in them; rather, such reforms undermine informal trust networks particularly in communities where local populations see the act of going to court as a breach of family ordinance. Where this belief is pervasive (especially in peripheral areas), people consider capacity building of state-constituted justice system as a mere extension of ruling government imperatives into their lives and unfamiliar symbols of state (police, court officials).134 It is only when one party refuses to cooperate with mediation efforts, that the matter is forward to a local court which has legal authority to enforce court decisions. Such transfer of cases is possible provided it is not too costly to access justice through formal courts and traditional authorities recognize that their conflict management roles are non-judicial.

133 Interview with Joseph Allysius Nyakeh Mathews, Section Chief of Mosoe, Kaiyamba Chiefdom, Moyamba District, conducted at his residence in Moyamba Town on 19 June 2014. 134 Interview with Adrew Lavalie, Former Justice Adviser (Informal Justice Portfolio), Access to Security and Justice Program (ASJP) & Director, Institute of Governance Reform, conducted at his office, Wilkinson Road, Freetown on 4 March 2014.

240

Adjudicative mechanism. Observations of these courts also show that when a complainant presents bora as summons and the defendant decides to cross it (produce the same amount), the process moves from mediation to adjudication.135 This shift to adjudication means that the objective of dispute resolution has changed from finding compromise to determining who is right or wrong in a matter followed by the required sentences. Sometimes, traditional authorities may request parties to give an informal consent to their settlement and make a commitment to accept whatever outcome so that it may appear they are conducting a non-adjudicative process. Also, the defendant may return a summons fee with an intention to concede wrongdoing and request for settlement. But the mere act of summonsing and crossing implies that each party is laying claim to an entitlement disputed by another party and the objective of dispute resolution becomes finding out which one of them is the rightful claimant. Adjudication is primarily concerned with the interest of disputants rather than restoration of broader societal relations. In presenting and crossing summons fees, disputants are requesting a disputing procedure, each hoping to win a case to the detriment of their opponent. For chiefs who adhere to their non-adjudicative roles, a matter should be transferred to local courts immediately an initial summons is crossed because adjudication requires judicial authority.136

As a disputing procedure, adjudication can become an expensive process for both parties. To cross an initial summons, the defendant has to provide an equal amount of cash because the winning party is entitled to a refund. In the course of proceedings, disputants are allowed to bet

135 The original amount may still be called by its traditional bora name instead of the more formal description of a summons. The difference here though is that value may be much higher and chiefs may demand its payment instead of a mere show of respect. 136 This is a very complex situation which makes it difficult to determine when a shift to adjudication has taken place. A sizeable number of chiefs claim that summons are referred to the local courts but observations and interviews with local court officials often reveal that these cases are withheld by traditional authorities under the guise of mediation.

241

on any amount, particularly in complicated cases that involve many witnesses and the use of traditional medicine which must be sanctioned by the paramount chief. If adjudication is over very serious matters, the parties may bet substantial amounts of money or property, each with an intention to subject the other party to considerable forfeiture. In local parlance, it is common to hear one disputant claiming they want to subject their opponent to huge losses in the hands of chiefs in order to teach that person a lesson. In land disputes (most frequent because title deeds are rare), expenses may include “moving the court” or “buying slippers” for chiefs to proceed to the disputed site to inspect and flag the land. Land flagging is an instantaneous injunction

(sometimes, symbolized by a white flag) ordering parties to stay off the land in question while the processes of adjudication are carried out. Disputants incur higher expenses when higher levels of traditional authorities are involved simply because these authorities are located in headquarter towns and what is given to them as bora as well as the fine they impose must befit their status. At the end of adjudication processes, disputants are requested to produce an expense list along with the amount recorded in cash. As soon as judgment is announced, the winner is entitled to both his and the opponent’s cash amount as compensation for expenses incurred during the disputing process. Since chiefs do not have legal authority to enforce their ruling, the matter is sent to local courts when parties express dissatisfaction with the outcome or refuse to comply. When a dispute is taken to any formal court, the proceeding has to begin all over again because chiefs’ barrays are not a formal court of record.

Adjudication without Authority: Kangaroo Court

Considering the difficulties in defining and identifying unofficial adjudicative mechanisms, it is crucial to emphasize a number of clarifications in this section. As claimed, the principles of

242

informality in adjudicative procedures are similar to those adopted for mediation purposes and they can be applied by the same traditional authorities, the only difference being in their dispute resolution objectives. Also, there are no reliable data on the prevalence of unofficial adjudication across the country partly due to this conflation of conflict resolution methods but also because some processes involve secret societies whose operations are not open to outsiders. The most reliable sources of data on unofficial adjudication in provincial areas are local court officials and paralegals who deal directly with traditional authorities backed by sustained community observation. Lastly, it must be stressed that unofficial court barrays are considered illegitimate only on the question of legality. These barrays are commonly known as Kangaroo Courts. This term originates solely from formal-legal perspectives of what a court ought to be and its definition in Sierra Leone was coined by formal justice actors who consider such courts as a barrier to primary justice. Representing the views of most legal practitioners, this is how one customary law officer defined Kangaroo Courts.

When the 2011 reform came into effect, the Local Court Act of 1963 was amended. The clause to prevent chiefs from adjudicating was retained and in addition to it there is now a penalty clause. But the challenge is they [chiefs] continue to be an obstacle to the local court. They continue to have the Kangaroo Courts. We call them Kangaroo Courts because these are courts in which no statements of the parties are taken down. You talk freely and the other party comes and talks freely. At the end of the day they give judgment in favour of whosoever they think deserves it. And if you are dissatisfied you cannot appeal. And the worst thing is they are extorting so much money from people. The local courts in some chiefdoms are virtually not functioning because all the matters are diverted to the chiefs who more or less extort huge sums of money from people137

From this definition, Kangaroo Courts are depicted in negative terms such as extortion, illegitimacy, abnormality, aberration, and disorder. Nonetheless, from this researcher’s community observations and interviews, chiefs’ courts are not as disorderly as portrayed by

137 Interview with Yusuf S. Koroma, State Counsel and Customary Law Officer, Northern Region of Sierra Leone, conducted at his Customary Law Office, Mena Hills, Makeni Town, on 13 March 2014.

243

some of these legal practitioners. There are stipulated rules and procedures (though unwritten) that must be followed and the level of order required in certain proceedings may be comparable to the serenity found in Supreme Court sittings.138 This study found no correlation between legality and legitimacy. Chiefs’ courts lack the legal authority vested in state-constituted local courts. Yet, as one former customary law officer put it, sometimes people use these so-called illegal courts more than the legally constituted courts.139

Figure 5.3: Elders Cross-examining Disputants in a Court Barray

Source. Author. Paramount Chief’s Court Baray in Gbendembu Town

As the comments below illustrate, most local court officials admit, often frustratingly, that chiefs’ barrays undermine their operations by attracting most disputes that are supposed to be under the jurisdiction of official courts. The overwhelming majority of 15 court functionaries

138 Interview with Timap for Justice Paralegals, conducted at Timap Office, 49 Upper Kai Tibi Street, Bo Town, on 2 June 2014. 139 Interview with Justice Abdulai S. Fofanah, ibid.

244

interviewed state that the greatest challenge confronting local courts is the prevalence of illicit chiefs’ courts that adjudicate cases they would have otherwise handled officially. These courts are operated mostly by sub-chiefs with tacit approval of senior chiefs, although paramount chiefs in poor chiefdoms like Gbendembu-Ngowahun in the north may also sit to adjudicate disputes.

That some senior chiefs in the north are interested in holding courts may not be unconnected to the fact that their Kantha training includes adjudication.140 Widespread frustration with Kangaroo courts relates centrally to the ability of local courts to generate funds not only for the chiefdom treasury but also for personal income to augment poor conditions of service. This problem of low proceeds has been worsened now that revenue generated by these courts are to be deposited into the national consolidated fund away from local chiefdoms.

It is on rare occasions that chiefs refer cases to the local court. In fact, in some chiefdoms, they remove cases from the local courts to their barrays. You would come to court for a whole month without a single cases or you can’t even get Le 3000 [less than $1] in a day or Le 50, 000 [$13] for the whole month. But when you go to these barrays you find them full with people. What can you do? This is the biggest challenge right now. So can government be paying these court functionaries when they are not making revenue? No matter what the government position might be, you have to raise some income which government can then subsidize to run the courts.141

From interviews with local court officials and paralegals, there are varied reasons why chiefs set up their own courts to adjudicate disputes. For senior chiefs who handle major cases, the underlying incentive for establishing a court is domination and control rather than income generation. In this study I found that senior chiefs are among the most economically affluent members of their chiefdoms and they have multiple ways of raising income including mining, plantation farms, and business connections in Freetown and abroad. As noted in analysis of the

140 Interviews with Customary Law Officer in the northern region, ibid; Local Court Supervisor for Bombali, conducted at the Customary Law Office, Mena Hills, Makeni Town on 14 March 2014. 141 Interview with David Y. Kabbia, ibid.

245

Local Court Act, paramount chiefs and their speakers seemed satisfied with hosting a court chairman who is answerable to them, not necessarily to influence his decision unduly but to demonstrate that all authorities in the chiefdom are subordinate to them. They hold their own courts when court chairmen want to assert their autonomy or own loyalty to central political elites in an opposition party. They also prefer important cases to be heard in consultation with them, if not by their own courts. For example, northern chiefdoms like Gbendembu-Ngowahun, which host nomadic Fullahs, are known for frequent land disputes arising from uncontrolled cattle grazing especially in neighbouring farm lands not covered by original lodging agreements.

These conflicts have the potential to escalate into communal violence with farmers attacking

Fullahs and their cows in retaliation for damage on their farms. Given the seriousness of those matters, this study observed that such matters are always transferred to the paramount chief who have authority to adjudicate them. Similarly, land disputes in mining district of Kono are brought before senior chiefs because of their role as custodian of communal land and in the issuance of artisanal mining licences. In just the same way that community members require permission from the paramount chief to use traditional medicine so too are senior chiefs central to major dispute settlements in their localities, according to interviews with traditional authorities.

Subordinate chiefs, who operate most illegal courts, are to a large extent motivated by revenue generation because of their low socioeconomic status. It must be recalled that the government pays stipends only to paramount chiefs and their speakers and this payment is very irregular. The only source of formal remuneration for sub-chiefs is a one-tenth rebate from local tax collection, which is normally not worth the transport cost to go for it for chiefs living in remote villages.

Income generated from daily sittings are normally distributed among the elders at the end of the

246

day for their personal expenses, as admitted by most of those interviewed. At the same time, observations and interviews with local residents indicate that most of these subordinate chiefs’ courts are not simply an instrument of extortion and exploitation. There is no standard summons fee in chiefs’ courts, but it can be as low as Le 5000 ($1). This researcher witnessed a number of instances in which cases were heard without fee payment, disputants negotiating what they could afford, and chiefs returning summons fees after amicable settlements. In one case in eastern

Gorama-Kono Chiefdom, a section chief returned the complainant’s summons fee because the accused admitted wrongdoing immediately he reported to the chief. In another in the same chiefdom, a section chief dipped into his own pocket for Le 5000 to pacify a young man who lost a case involving an informal contract to provide labor on a farm. These behaviours are not mere artefact of the observation process as interviews with local residents confirmed that some chiefs are not interested in making money out of dispute adjudication.

In the absence of reliable longitudinal data on the types and frequency of cases in local courts, it is difficult to support these claims with statistical analysis of how unofficial adjudication impacts the operation of local courts. Without such data, it is also hard to determine the extent to which local courts are affected by the activities of chiefs’ barrays and vice versa. However, this research found that local courts are dormant particularly in localities where chiefs’ courts seem active. Most of the local courts visited in every region were found to be empty compared to chiefs’ barrays and their case catalogues often show either sharp reduction in the number cases reported or an increasing number of withdrawals for out-of-court settlement. Prominent court barrays operated by paramount chiefs, speakers, and senior section chiefs are usually located in close physical proximity of legally-constituted local courts. In chiefdom headquarter towns,

247

vacant rows of benches and sluggish sessions in local courts are sometimes a sharp contrast to an overbooked chief’s court operating few meters away. But why are disputants requesting adjudication from so-called illicit chiefs’ courts, even in places where the state-recognized local court is within a walking distance? The explanatory factors gleaned from interviews and observations have been synthesized into three pertinent issues, all related to adverse unintended consequences of state regulation of customary justice systems. The 3 issues are related to the speed (fast justice), familiarity (familiar justice), and potency (hot justice) of customary justice as discussed below.

Fast justice. Chiefs’ barrays and local courts operate alike in terms of their dispute resolution procedures and objectives. Nonetheless, chiefs have a comparative advantage in responding spontaneously to local disputes and resolving them within the shortest possible time, an element of speed that local residents seem to appreciate deeply. There is a local chief in every rural community who can be reached at any time without any formal protocols and who is able to bring parties together as soon as possible. Traditional authorities do not have office hours and hardly take vacation from their unofficial dispute resolution roles. Apart from being highly responsive, the dispute resolution process itself is relatively shorter, free of unnecessary delays.

Many traditional authorities and their courtiers in prominent barrays are educated, sometimes more than local court functionaries. Yet they discourage formal recording of statements as a way to incentivize traditional authorities, who have to rely on retentive memory, to adjudicate disputes expeditiously. It is believed that the longer a case stays in the hand of a chief, the higher

248

the likelihood for witchcraft manipulation.142 What this means is that a period of delay may create room for people to influence your decision through kinship relations as well as for the dispute to escalate through malicious insinuations and provocations.143 Fast-tracking hearing also reduces the expenses litigants incur when their cases go through series of adjournment in formal courts, such as transportation and other opportunity costs for themselves and their witnesses.

Local courts are concentrated in chiefdom headquarters. They operate according to office hours and those operating an itinerant system sit court in different locations at two-week intervals.

Also, proceedings in local courts are bound by the notorious 14 days rule, which provides the defendant in a civil matter a maximum of two weeks to prepare what is required for summons and hearing fees before coming to court.144After a case has been called, local courts tend to take more time to assemble witnesses and evidence before passing verdict. Delays are aggravated when cases are forwarded for review or appeal. There is only one customary law office responsible for reviewing customary law matters in the northern region and another serving the southern and eastern provinces combined. Magistrate courts, which act as District Appeal Courts for customary law cases, are always overwhelmed with matters related to general English law which is their priority. Meanwhile, officials of the magistrate court can write a formal motion to local courts instructing them to cease proceedings of a matter that has been brought to their attention, an order that subordinate chairpersons must comply with no matter how long it takes for the magistrate to act. But if courts are seen as a marketplace competing for customers, then as

142 Interviews with John F. H. Simbo, Section Chief of Jiahun, Mano-Dasse Chiefdom, Moyamba District conducted at his residence, Mano Town, on 21 June 2014; Joseph Momoh Hubbard, Senior Section Chief of Gbanbatoke, Lower Banta Chiefdom, Moyamba District, conducted at his resident, Gbanbatoke Town, on 25 June 2014. 143 Ibid. 144 Most local court officials interviewed want this 14 days rule to be removed so they can have the same leverage that chiefs have to act immediately a matter is brought to court.

249

this customary law officer observes, these unnecessary delays make chiefs’ courts more attractive. According to one official interviewed:

So yes, they are Kangaroo Courts. But they are more functional because they serve more people on a daily basis and meet their need within time. The local courts are limited; they only sit on weekdays. So if you have an infraction on a weekend, you are in trouble. Let take an example of someone suspecting his wife of cheating him on a weekend. You have to bear the pain of jealousy until Monday morning. When you come on Monday to sue, they serve the defendant, the suspected adulterer, but as a civil matter he has up to 14 days for the case to come up for trial. Meanwhile you are still boiling with jealousy. If the matter was taken to a chief, a decision is reached on Sunday morning and you go to your farm. If it is proven, you get your woman damage and the problem is solved. So tell me, which is more functional and relevant? Is it because it is not based on Western procedure that we must condemn them? Is it not meeting the needs of people? If the answer is yes, forget about the label.145

Familiar justice. The second issue relates to whether customary mechanisms are administering familiar justice in terms of applying norms acceptable to members of a culturally homogenous community. It is difficult to distinguish adjudicative procedures from other forms of dispute resolution that take place in a chief’s barray. Fees are coded in customary terms such as bora, fines can be paid using customary items where cash is scarce, and it is possible to move from one conflict resolution procedure to another. In addition to their traditional authority, chiefs bring to their courts social capital rooted in informal trust networks, reputation of elders, kinship relations, and membership of societal groups. That traditional authorities are also performing administrative and political roles potentially undermines the principles of separation of power and “decentralized despots” may wield absolute power against their people. Close relations with disputants may equally risk partial adjudicative procedures, especially in matters involving an indigene and a stranger. But familiarity with local community and fusion of power does not necessarily imply biased decision-making if enforcement of a decision outside the state system

145 Interview with Monfred M. Sesay, ibid.

250

depends on social pressure and moral persuasion. Besides, using a customary panel means chiefs’ barray can take up adjudicative functions without being perceived as a formal court or inviting the same level of social aversion associated with formal litigation. Traditional authorities do not operate a flawless model; rather, what matters is their relevance under certain historical and sociocultural circumstances, a clarification re-echoed by this lawyer.

There is a Justice Sector Reform and Investment Plan which has been adopted more or less as the government’s blueprint to reform the justice system in this country. Now, that document recognizes that the vast majority of Sierra Leoneans utilize traditional informal mechanisms to resolve disputes. They don’t come to the formal justice system. These are far-removed, expensive, and alien to them. Now, you would want to think that these mechanisms are working effectively and perfect. The fact is they are not perfect but they are much better than the formal system. People live with them, people believe in them, and so they go there to seek redress.146

On the contrary, local courts have evolved from decentralized locally-owned conflict resolution mechanisms to a state-regulated medium of primary justice. Centralizing the administration of local courts not only means disconnect from traditional authority structures but also alienation from local communities whose customary laws they are designed to administer. One way the local courts are able to maintain some semblance of traditional legitimacy is to secure the backing of traditional authorities of chiefdoms in which they operate. People utilize these courts whenever chiefs are pleased with their operations. Before now, chiefs had occasionally denied local courts traditional authority when the court chairman was installed by a politician at the centre, a tendency that has been exacerbated by the 2011 Act which is widely perceived as an attempt to create parallel authority structures in local chiefdoms. Moreover, the formal linkages established by this Act imply that rural residents would inevitably have to deal with the English justice system whenever they are dissatisfied with decisions made in local courts. The District

146 Interview with Sonkita Conteh, Program Director, NAMATI Innovation in Legal Empowerment, conducted at his office, 31 Murray Town Road, Freetown on 25 February 2014.

251

Appeal Court is simply a way of reintroducing people back into the same orthodox, elitist, and formal justice system discussed in Chapter 4. It is not surprising then that such appeals are rare despite an extremely weak local court system, as most magistrates interviewed attested. This local resident stated that the local court in his chiefdom has never heard cases from certain parts of the locality because traditional authorities were the forum of choice.

In terms of justice, we have elders in this community to whom you can report if you have a problem. Most times, the case is judged based on the bargain of the parties. They may say if this particular point is not supported by my witness or evidence, I am wrong in this matter. Justice prevails in the sense that you are playing by your own rules. We have six sections in this community and some areas have never had a case before the local court.147

Hot justice. The third issue of adjudication in chiefs’ courts concerns the potency of local dispute resolution. Although sometimes for malign intentions, the flexibility of chiefs’ barrays make them malleable to the kind of settlement that disputants may want. Unlike local courts that have statutorily stipulated fees and processes to restrict their operations, barrays often adopt adjudicative procedures that may seem unfair but which suit litigants’ disputing objective. For instance, most local residents and paralegals admit that chiefs are popular because they deliver

“hot justice” which is not only fast but imposes heavy financial burden on litigants, more so those who lose a case. Heavy fines can hinder access to justice for poor people while giving undue advantage to those who are financial strong (one of the problems associated with formal justice). Local courts can equally go beyond their statutory limits to impose hefty fines that are not officially receipted. The issue here though is that sometimes litigants request this kind of adjudication when their intention is to win a case, subject their opponents to huge financial

147 Interview with Sahr F. Borbor, local resident of Kangama Town, Gorama-Kono Chiefdom, Kono District, conducted at his residence on 31 May 2014.

252

losses, and teach them what they regard as a lesson. And what this means is that local communities and their dispute resolution mechanisms are not always reconciliatory as the emerging literature on customary justice tends to portray.

Heavy fines can also be used to guard against frivolous litigation. In the north, chiefs-in-kantha are considered particularly “hot adjudicators” as fines levied in the Kantha bush are usually exorbitantly higher than normal rates in chiefs’ barrays. Yet still, as one female ceremonial chief disclosed, the majority of local residents who visit the Kantha bush are disputants looking for

“hot settlement” of their disputes.

I am Christian and so too is the paramount chief. Eleven of us were in the Kantha bush including two Muslims. The first thing we did every morning was prayer meeting before we sat on any case. We had so many cases to handle, referring some of them to the local court. Many people took their matters to the Kantha bush because of the kombolo [trouble] they wanted to subject their opponent to. What is a Le 50,000 [$12] fine under normal circumstances, becomes Le 120,000 [$30] when heard in the Kantha bush. People are stubborn in this chiefdom; they like disputes and to advantage other people. They were in the bush for eight months but I spent only three months with them.148

Paralegals draw attention to instances where litigants dictate the amount of fines deemed fit for particularly cases and consider chiefs who request a modest amount as weak. In these instances, it is common for both litigants to pledge a certain amount of cash which they are willing to forfeit if they are found wanting for an infraction or lose the dispute eventually. Some chiefs would insist on a reasonable amount in their courts and it must be recalled that imposition of exploitative disproportionate fines is not sanctioned by customary laws. At the same time, other traditional authorities have adopted this practice as a source of private income, often at the expense of equal access to primary justice. While not losing sight of such probability, it is

148 Interview with Ya Bolma Mansaray, Ceremonial Chief on Gbendembu-Ngowahun Chiefdom, Bombali District, conducted at her residence, Kalangba Town, on 15 April 2014.

253

important to keep this phenomenon of chiefs raising income from litigation in its proper historical context (Chapter 3 & 4). The majority of administrative as well as law enforcement functions in Sierra Leone’s 149 local chiefdoms are carried out by traditional authorities, most of them officially recognized by the central state administration. The growing salience of chieftaincy as an institution of local politics has made competition for paramount chief and other critical subordinate positions an expensive undertaking. Meanwhile the vast majority of chiefs

(especially sub-chiefs) are not on payroll and they have been prohibited from requesting free labor and tributes from their people. Under these circumstances, some chiefs admit that they are forced to “adjudicate without authority” so as to make an income for themselves and to meet expectations of their office. Thus, the interaction between formal and informal justice norms depends fundamentally on the nature of the local political economy in which disputes are settled.

Conclusion

This chapter has presented two additional elements which are vital to understanding how formal and informal primary justice systems interact at the sub-national level: traditional authority structures and procedural justice norms. Analysing traditional authority / power structures has been useful to illuminate how justice sector reform affects local power dynamics, particularly the relations between parallel authority structures such as chieftaincy. Regulation of these structures not only impacts who controls primary instruments of coercion but also their social relevance, authority, and legitimacy. While reform of primary justice in Sierra Leone is intended to increase access to justice, intensifying formal regulation has had the opposite unintended consequence of making unofficial dispute resolution more relevant. The unofficial illegal system has not supplanted the state-recognized system. Rather both systems have coexisted and this study has

254

reported / documented various sets of circumstances in which this relationship can become cooperative or conflictual, all shaped by the overarching question of power. This sub-national level of analysis has also revealed the importance of going beyond binary formal and informal institutional explanations to considering the variety of customary justice institutions operating in

Sierra Leone.

Analysis in this chapter is based almost exclusively on the structural and procedural justice norm dimensions, such as institutions, mechanisms, penalties, and actors involved. These dimensions are central to the issues of legitimacy and social relevance which shape not only justice outcomes but also multiple interaction between primary justice systems. Also, the findings have been limited to provincial areas of Sierra Leone where traditional authorities (e.g., local chiefs) are prohibited from adjudicating disputes without legal authority. Although some important patterns have already begun to emerge, it is necessary to determine the robustness of these initial findings through a broader definition of justice that includes normative dimensions and beyond the rural parts of Sierra Leone. This is the primary goal of the next chapter.

255

CHAPTER SIX Primary Justice Interaction Continues: Beyond Provincial Sierra Leone

Introduction

This chapter continues to explore the complex interactions between formal and informal justice systems, focusing on two additional contexts outside the interior areas of Sierra Leone—the western area of Freetown and the Liberian county of Grand Gedeh. These cases were selected as contrasting examples of the legal and institutional environment in which customary justice systems operate in provincial Sierra Leone. The previous chapter noted that the administration of primary justice in the rural areas is shaped mainly by the interplay between official and unofficial customary justice systems and revolves around the question of who has authority to apply customary law. In contrast, the application of customary law is entirely prohibited in

Freetown and there are no state-constituted local courts in this region even though people of protectorate/rural origin constitute the majority population. Consequently, the first part of this chapter will explore how customary justice thrives in a modern context that does not recognize customary law and how the institutions that apply such a law do interact with the formal state system. Beyond the legal framework, inquiry will also focus on the structural and political factors that drive the contemporary social relevance of customary justice systems in the western area of Freetown.

The same line of inquiry will be utilized in analysis of Grand Gedeh County in the second part of the chapter. But in contrast to Sierra Leone, the Liberian case will take into consideration the fact that traditional leaders in that country have legal authority to adjudicate disputes in their local communities. Chiefs’ courts operate separately from the formal court system and under the

256

supervision of the Ministry of Internal Affairs represented by local government officials at county and district levels. Furthermore, Grand Gedeh is one of the most remote counties in the country with little or no connection with the indigenous population of Sierra Leone. Despite these divergent legal and sociocultural circumstances, analysis of the Liberian case will focus on the common dynamics of customary justice in order tease out cross-national explanatory factors.

This extension of the study is aimed at strengthening the findings of this research beyond a single national context, although the level of comparative analysis remains essentially sub-national.

In expanding the study sites, this chapter will also concentrate more on questions of legitimacy and social relevance, though not in complete isolation of issues related to local authority and power discussed extensively in Chapter 5. In other words, both cases are intended to further explore the experiences of people who seek redress in multiple forums including those operating outside the formal state system. In the previous chapter, the full spectrum of traditional authorities was covered but corroborating the veracity of their claims only started toward the final section to that chapter. It is therefore apt to continue this line of corroborative inquiry; thus, the main sources of data in this chapter are interviews with local residents selected through a snowball sampling but reflective of diverse socioeconomic backgrounds. For both cases, the experiences of local people will be drawn from approximately 25 in-depth interviews with community members supplemented by a sizeable number of interviews with tribal heads in

Freetown and local chiefs in Liberia. Using evidence in one case to corroborate findings in another may risk conflation of cases. However, such a risk is minimal in this study as the majority of local residents interviewed in each case are either located in rural areas or migrated from those areas to urban centers.

257

Illegal Justice: Application of Customary Law in Freetown

It must be recalled from the historical background chapters that Freetown, the capitol, has been the center of Sierra Leone’s modern state system. From its original establishment as a settler colony for liberated Africans following the abolition of the Trans-Atlantic Slave Trade to becoming a British Crown colony, the administration of state justice has been concentrated in this region, a trend that has continued in the country’s post-war restructuring agenda. Property rights and commercial transactions are based on the formal English law which privileges people who have acquired western education and internalized Judeo-Christian values. It is also worth recollecting that there were indigenous inhabitants in the western area of Freetown before the arrival of freed slaves and that people from upcountry have moved to this urban center due to socioeconomic centralization and displacement during the civil war.149 This category of indigenous people constitutes the majority population but they are peripheral to the modern system because its legal institutions have historically given advantage to descendants of settlers

(Krio), the educated class, and the central governing elites.

The ethno-political history suggests that while the Krios were the minority descendants from liberated Africans, their close association with the colonial administration accorded them an opportunity to access formal education and adopt Western values. Kandeh (1972) notes that

“education and Christianization were viewed by Krios as central to their identity and the creolization of protectorate Africans” (87). Due to their early access to education and location in the colony, the Krios were considered British subjects capable of using modern institutions under

149 In this chapter, people whose ancestry is traceable to inhabitants of Sierra Leone before the arrival of freed slaves would be regarded as people of indigenous origin or descent as distinct from the descendants of settlers following the founding of Freetown in 1787.

258

English law unlike their counterparts in the interior who were regarded as “protected persons” under native law. English law protected commerce and state administration, areas dominated by the Krios who regarded themselves as rightful heirs of colonial rule (Kup 1975; Wyse 1989).

Harrell-Bond et al. (1987) have argued that “the organization of the administration of the colony gave advantage, on a fairly consistent basis, to the settler population” (3). These advantages have historically been inaccessible to the original inhabitants of Freetown and the protectorate because the English legal system viewed them as “natives” even when they resided in the colony. Natives were assimilated into the colony and Krio community only after attaining the markers of Western civilization including Christianity and formal education (Kandeh 1992).

Yet at independence, the educated protectorate elite assumed political power over the Krios. It was the misfortune of the Krios that decolonization would take the form of party politics and electoral competition in which numerical strength mattered. Formed by the protectorate intelligentsia, the SLPP won the elections that transitioned the country into independence and gradually replaced the colonial administration in the post-colonial era. But the logic of elite domination did not change as state institutions remained at the behest of a small ruling coalition

(Chapters 3 and 4).150 English law became the general law not because it was applicable to the majority population but because it provided a legal basis for a modern state system dominated by the governing class. Although people of protectorate origin continued to populate Freetown, the central legal and administrative institutions remained rooted in norms that were more familiar to

150 According to a 2010 profile report by Statistics Sierra Leone, people of indigenous origin constituted about 60% of the population of the western area, particularly from the Temne, Mende, Limba, Fullah, and Loko ethic groups. The Krio population was about 43%. That same report noted that Christians represented about 32% of the population while Muslim constituted about 68% (Sierra Leone Union of Population Studies, “Population Profile of Western Area Urban,” 2004 Census Publication Series, revised February 2010)

259

the Krios and educated class, bequeathed by the colonial administration. The irony is that what became codified as state law emerged from British customary law which was itself based on informal legal norms of the British people.151 Meanwhile, those who migrated from the interior found their customary law institutions relevant to address the social and interpersonal challenges encountered in the modern Freetown society (Harrell-Bond et al. 1987; Kandeh 1992).

This politics of exclusion necessitated the appointment of tribal heads to assist government in the administration of various ethnic groups in areas of inheritance, traditional, and customary issues

(Chiefdom and Traditional Administration Policy 2011). It was the colonial administration that instituted tribal authority in Freetown because the British governor needed advice on how to deal with matters affecting people of indigenous descent. Tribal heads were also appointed to assist the colonial government in deterring criminal behavior among the indigenous population and tracking down suspected criminals who escaped back into the interior (Harrell-Bond, et al.

1978). Unlike paramount chiefs in provincial areas who were in charge of an entire chiefdom, a tribal head was supposed to be responsible for a specific ethnic group in the western area and he was appointed directly by the governor, now the president. The 2011 policy states that “the primary role of tribal heads is to promote harmony of tradition and customs among ethnic groups in the western area by acting to prevent and resolve conflicts through mediation of customary matters” (16). This policy to limit the conflict management role of tribal heads to mediation is in line with the 2011 Local Court Act which states that customary law has the force of law only in a chiefdom of the provinces where local courts have been established. It is also in consonance with

151 This is an important clarification. While customary English law originated in response to vagaries of the informal political economy of Britain, the legal rules transported to British colonies were codified into ordinances which later became the foundation of modern statebuilding in post-colonial Africa. This is also reflected in recognition of African customary law as all recognized customary rules were to be codified to be accorded official status.

260

the inclination of successive governments to eschew the application of customary law in

Freetown, going as far back as the 1967 National Reformation Council which abolished tribal headmen courts and extended the jurisdiction of magistrate courts to include customary law. But despite these policies and legislations, customary justice systems seem to thrive in this western area, particularly in the post-war period.152 To examine the factors that are responsible, the following sub-sections look at how people of indigenous descent access justice in Freetown taking into consideration the legitimacy and politics of tribal authority.

Accessible Justice in Freetown

As noted in Chapter 4, the formal justice system is concentrated in the Western Area of Sierra

Leone to an extent that there are more lawyers and courtrooms in Freetown than the rest of the country combined. However, interviews and observations in this study indicated that while formal justice institutions are relatively more available in this region, access to justice remains hampered by the fact that the system is impermeable to people who lack the required resources, knowledge, and culture to navigate its formal structure. The first part of the problem is that the state system continues to be inconsistent with the socioeconomic environment within which the majority population interact and fails to accommodate the conflict resolution needs of these people, a paradox that has been reinforced by post-war justice reform programs. This situation corresponds to what Tamanaha (2015) calls the “urban ring” squatter settlements populated by poor and less educated people for whom the state legal system is of little relevance. The divide

152 This not a claim based on statistical evidence as such data is not available. Rather, it is based on interviews with judicial officials, human rights activists and lawyers working on access to justice programs in Freetown. Their claim that tribal courts were growing was corroborated by this researcher’s own observations of informal justice in the western area as well as interviews with tribal heads and local residents who have used or know about chiefs’ courts.

261

between the core and urban ring is not spatial as “the poor sometimes live in the cosmopolitan center while the wealthy may live in enclaves” (12). Rather, the urban ring concerns people surviving at the fringes of those with power and privilege to take advantage of the modern system.

During fieldwork in Sierra Leone, this researcher observed that this phenomenon of “urban ring” is growing in the western area of Freetown not just because of displacement during the war but also, and perhaps more importantly, because of the post-war economic boom in the country. It was stated in Chapter 4 that the country’s pre-Ebola economy was among the fastest growing in sub-Saharan Africa. One way that this economic growth seemed to have manifested itself has been an increasing urbanization with business elites investing in private projects alongside the state modernization agenda. In this mainstream economy, the majority of residents in Freetown belong to the lower working class which constituted about 76% of the workforce in the late

2000s.153 In addition, urbanization has been accompanied by a vibrant informal sector that accommodates most people of indigenous origin who cannot enter the formal economy. For example, while economic elites are investing in personal housing estates in the sprawling modern capital, many unemployed people are making subsistence income in an informal quarrying industry, a local stone crushing activity to produce concrete needed for building construction.

Another informal occupation associated with the economic boom is a caretaker, someone who is allowed to reside temporarily on a construction site or land as watchman over that property.

Others have sought subcontracting opportunities to provide labor to a contractor who pays them a daily wage without any formal contract. Economic growth seems to be driving these types of

153 Sierra Leone Union of Population Studies, “Population Profile of Western Area Urban,” 2004 Census Publication Series, revised February 2010.

262

employment because it is arguably cheaper for the capitalist class to hire labor in an informal sector free from industrial regulations and official workers’ benefits.

Interacting with local residents in Freetown, this study notes that people in this informal economy live a highly interdependent lifestyle, almost synonymous to communal living in the interior. Most employment opportunities of this underground economy are obtained through informal trust networks and job security often depends on cultivation and maintenance of these relationships, both vertical and horizontal. These informal relations are based not only on kinship ties derived from indigenous background but also a network of relationships with “big men” of connection and wealth. Like residents in provincial areas, people in the peripheral urban ring seem to define access to justice both in terms of its relevance to their conflict resolution needs and the cost involved in seeking redress. Among those interviewed in this study, there is a general perception that the majority of problems associated with the informal economy cannot be handled by the formal justice system either because these issues are considered trivial or not amenable to formal redress. For instance, there is a fast-track commercial court in Freetown designed to reduce the time and cost for commercial litigation through modernized regulatory and administrative procedures. But the operation of this court favors commercial businesses that are duly registered with proper documentation. About half of local residents included in this research cited personal experiences of their cases being dismissed by the police for lacking proper documentary evidence or simply not admissible in a formal court.154 Yet, these formal

154 Interviews with Kapr Conteh, local resident in Regent Village, Freetown, conducted at his Sugar Loaf residence on 14 August 2014; Mammy Uma Sesay, local resident at Matomeh, Regent Village, Freetown, conducted at her residence on 10 August 2014.

263

documents such as title deeds to land and employment contracts are obtainable only in the mainstream economy mostly by those who have the required resources and connection.

Conversely, tribal courts, which are similar to chiefs’ barray upcountry, are well suited to deal with matters dismissed by the formal system. In her interview, one petty businesswoman was thankful for the intervention of her local chief who was able to retrieve Le 500,000 [$110] from another woman who failed to deliver the items she was asked to purchase on an unregulated business trip.155 That amount was this petty trader’s total savings for many years and she stated that it would have been difficult to seek formal redress because her transaction was based only on an interpersonal relationship with no receipt of payment. Others cited “threatening remarks by native means” as a serious problem affecting their communities but which cannot be investigated by the police or litigated in a formal court.156 For these people, threats of this nature would lead to interpersonal conflicts in the absence of traditional authorities who can interpret their meaning and resolve disputes that arise from them. A significant number of respondents stated that they take such threats very seriously and had reported their neighbors to a chief for uttering threatening statements against them.157 Likewise, some respondents underscored the efficacy of native medicine. When an accused believes in the power of such medicine, the threat of it being used in an investigation would deter that individual or compel him to confess guilt, one unemployed young man affirmed. According to him, those mechanisms suffice to maintain

155 Interview with Isatu Bangura, local businesswoman, conducted at her residence, Mansaray Drive, Off Jeremiah Street, Regent Village on 10 August 2014. 156 These threats are often linked to spiritual forces including witchcraft. It is difficult to acquire information on these issues but respondents attested that they are a crucial problem affecting the informal economy. 157 Interviews with Mammy Uma Sesay, ibid; Adikali Conteh, ibid; and Isatu Bangura, ibid.

264

peaceful coexistence at the community level insofar as they mitigate the aggravation of mistrust and give complainants a sense of justice.158

Furthermore, when people in the urban periphery make calculation of the cost of justice, the tendency has been to prefer settlement outside the state justice system, mostly in tribal headmen courts. Tribal courts are not always cheap and there is a high risk of disputants not being able to recover their expenses because those courts are not legally recognized. But the majority of respondents in this study viewed them as relatively affordable compared to what it would cost them to deal with the police or hire a lawyer to represent them in a magistrate court. Apart from the possibility of paying lower court fees (summons fee is about Le 35,000 or $10), affordability for many includes additional expenses saved by a timely and speedy resolution of disputes which is one of the attributes of tribal courts. As the comment below demonstrates, speedy dispute resolution does not only remove the attendant expenses of frequent adjournments in the formal justice system but also allows people to return to their daily livelihood activities as soon as possible. This is an important consideration in an informal economy which thrives on interpersonal relationships and where people’s daily livelihood depends on what they earn every day.

Well, we have our local chiefs who are responsible for settling minor matters so that they don’t escalate into a problem. I am a drag man [unemployed] who depends on stone breaking to survive each day; I don’t have a lawyer and don’t have money to hire a lawyer. But I can approach the chief with a small amount and he would ask me to wait while he invites the person I reported. If he is available, the chief may hear and settle the matter on that day. Both of us would then go home and live in peace. When I go to court, it would take time for him to be served. After he is served, they would then adjourn the matter for several months. Meanwhile, the relationship between both of us has been broken. He would not come my way neither would I because we are in court. But the chiefs can amend the problem in few days and then restore peace between us.159

158 Interview with Kapr Conteh, ibid. 159 Interview with Kapr Conteh, local resident in Regent Village, Freetown, conducted at his Sugar Loaf residence on 14 August 2014.

265

Also linked to the informal economy, the vast majority of respondents believed that resolving disputes in tribal courts saves them the social cost of channelling conflict through the formal justice system. For them, social cost is discounted by the fact that tribal heads do not have coercive instruments to take punitive measures such as detention of an offender. This aspect of customary dispute resolution seems highly important for respondents who wanted to avoid subjecting their neighbors to punishment for a minor offense. One respondent stated that when you take a neighbor to the police for a minor crime and he is detained for your sake, he would have a deep grudge against you for subjecting him to humiliation.160 Another respondent who grew up in the interior, noted that his rural community attached some stigma to handcuffs and cells to the extent that those released from prison had to be washed before reintegration back into society.161 This stigmatization may not be unconnected to the deplorable condition of prison facilities in the country and the tendency to link the state system more toward punitive justice.

More importantly, these participants expressed concern about the potential of punitive actions to undermine informal trust networks upon which the social fabric of their community rests.

Severally, they referred to other disputants as their neighbors, people living in the same compound, workers in the area, or a relative whose relationships they wanted restored. As illustrated in this response, timely resolution of dispute is important for restoring broken relationships and also underscores the vital conflict management role of tribal authorities in peripheral communities.

I remember the first case which involved violence against my child. The chief invited the person I reported. He refused to respond to the first invitation but the chief himself went to his place. When he came, the chief asked him why he chose to violence another person’s child without first reporting that child to his parents. I felt good about that question because that was what I had in mind to ask this person. He was humbled by this

160 Mammy Uma Sesay, local resident at Matomeh, Regent Village, Freetown, conducted at her residence on 10 August 2014. 161 Interview with Kapr Conteh, ibid.

266

question and appealed to the chief to beg me on his behalf and promised not to repeat his action again. He wanted to use a small amount of money to beg me but I told the chief I don’t want his money. I just want him not to do what he did again because we are neighbors. The chief joined him to appeal to me. I accepted because the chief had taken up my case and asked the question I wanted to ask. And I know the person as a worker in the compound of my neighbor.162

This kind of restorative justice that minimises the social cost of conflict is what most people who participated in this study claimed to be relevant to the conflict resolution needs of their societies.

It must be noted that some people believed the state system was ill-suited for this kind of justice based mainly on their experience of that system. Approximately half of them stated that they have never dealt with the formal system and would never want to do so. But perception of the state justice system seemed to be as important as the performance of the system itself. Also, this discussion should not be construed to mean that state institutions are completely irrelevant in the peripheral urban ring of Freetown. Many participants in this research preferred state institutions to handle major criminal matters and they cited examples of chiefs referring them to formal authorities when such cases arise. Yet among those who approached these state agencies were people who regretted doing so because they could not get the attention they expected even for pressing matters. One lady whose land dispute has taken three years of police investigation lamented that “I am sure it would have been settled by the chief a long time ago but they say chiefs should not handle land matters.”163 Also, a young man who was seriously injured by a suspected thief gave up the case after months of police investigation yielded no result. As serious as his injury was, he concluded that “if it were the chiefs and elders, they would have called us

162 Interview with Mammy Uma Sesay, local resident at Matomeh, Regent Village, Freetown, conducted at her residence on 10 August 2014. 163 Interview with Mammy Uma Sesay, ibid.

267

and settle the matter.”164 These expressions of satisfaction about the performance of tribal courts reinforced an important finding in the previous chapter, which is that legality and legitimacy are not always correlated. Tribal courts in Freetown are illegal but according to the experiences of local residents in this study the issue of illegality does not seem to have affected perception of these courts’ effectiveness and social relevance.

On the contrary, almost all of these residents called for compensation to tribal authorities for their role in maintaining law and order in the western area of Freetown. In responding to questions about the illegality of tribal courts, most of them were displeased with such a law, interpreting it as an attempt by the government to deprive them from accessing justice. With some respondents foreswearing never to deal with the state justice system, their resentment against proscriptive laws indicated the indispensability of tribal courts even at the center of the modern state. In fact, people were seriously concerned about the security and justice vacuum that would be created if such prohibitions were to be enforced in peripheral communities whose pressing problems are often beyond the competence and capability of the formal justice system.

All respondents believed that tribal courts are better suited to address justice needs associated with the informal economy as a complement to the modern state.165 One way they interpreted the complementarity between both systems is that tribal courts serve as a default mechanism for insulating an already overstretched state system from minor disputes.

164 Interview with Adikali Conteh, local resident, Obama Junction, Regent Village, Freetown, conducted at his residence on 14 August 2014. 165 In terms of criminal matters this cooperation is somehow evident in the local policing partnership boards created as part of the country’s justice sector development program.

268

Linking informal conflict resolution to social order at the sub-national level, these courts were credited by local resident with ameliorating minor violent conflict especially among youth who have been exposed to violence during the civil war and yet received insufficient skills for successful economic reintegration during the country’s disarmament, demobilization, and reintegration (DDR) program. In the squatter settlement of Banbanyilla, this researcher’s attention was drawn to a recent incident in which youth who felt they were not paid well in an informal contract to transport sand to a building site launched an attack on the middleman of the project.166 The confrontation would have led to serious injuries without the timely intervention of a tribal head, popularly known as “Chief Justice.” Similarly, another unemployed young man recalled a violent incident with one of his peers that would have worsened had he not reported to a tribal chief nearby. This respondent attributed the frequent occurrences of conflict among his peers to the desperate unemployment situation in which “everybody is disgruntled and easy to misinterpret a joke for an insult.”167 But as we shall see in the next sub-section, beyond performance efficacy, the popularity of customary justice in Freetown tends to be related to broader issues of legitimacy and authority of tribal heads.

Legitimacy of Tribal Headmen Courts

If the contemporary relevance of tribal courts was based solely on functional utility, then making the formal justice system more accessible would make them redundant. However, close observation of these courts in this study suggested that such an expectation would be mistaken.

166 Interview with Junior Momoh Foray, local resident at Banbanyilla, Freetown, conducted at his Pipeline residence on 11 August 2014. 167 Interview with Foday Kisma, local resident, Banbanyilla, Hill Station, conducted at his residence on 13 August 2014.

269

Since these tribal authorities are not part of the country’s chieftaincy institution, they do not possess the same kind of “traditional legitimacy” which paramount chiefs have by virtue of descent from ruling houses, membership of secret societies, or election by traditional authorities.168 Unlike paramount chiefs who are symbolically recognized with a staff of office and medallion, tribal heads of each ethnic group only receive an appointment letter from the

Ministry of Local Government. But this researcher’s interaction with local communities in

Freetown indicated that some tribal heads have sought to cultivate a moral authority to rule by assisting new settlers from the interior, supporting those who are in conflict with state law, and representing their communities where state actors fail to act. Others have taken advantage of their connections in the municipality to assist new comers to get gainful employment either by supplying labor force to the public sector or negotiating with private individuals as noted above.

In return, provision of these services seemed to have enhanced the reputation of those tribal authorities as moral guarantors of their people’s wellbeing.

Consequently, tribal courts have been inextricably linked to this reputation of tribal heads in such a way that most respondents were unable to disentangle the two. Residents who have obtained favors from established relations counted on the moral authority of those individuals to assist them in resolving conflicts encountered in the informal economy. Similarly, tribal heads who were perceived as “not money conscious” and respected members of their communities tended to operate courts which were deemed to be effective and popular. These authorities were also described as “komra chief” when they demonstrated empathy and leniency to people who found themselves in difficult circumstances. A “good chief” was described as someone who is not

168 It should be noted that some aspects of traditional legitimacy such as ruling houses were invented by colonialist.

270

above the rules set by the community or who sets a moral example for others to follow. For instance, some respondents said that they respected their tribal head because he was respectful to everyone irrespective of that person’s status in the community.169 Others credited traditional authorities who have stood for the truth regardless of whether the matter involved their relative or an influential individual.170 As indicative in this response, these attributes suggest that a legitimate customary justice system operates in a reverse order of the state system which is largely predicated on power, wealth, and political connection.

The chief is a komra. We have so many chiefs in this area but he is one of the komra chiefs that does not take sides in a matter. Sometimes I go to his barray to witness the way he settles other cases in order to listen to him. What I like about his work is that he stands for the truth. Secondly, he is not money conscious like other chiefs who demand a lot. His usual practice is to ask parties what they can afford to compensate each other for losing a case. He does not force parties to state an amount; it’s up to you. We have about 10 chiefs in this community but he stands out. He is not only known for settling cases. He is with his people in every problem that confronts them. People from other ethnic groups come to him because he stands for the truth.171

According to this interview, tribal heads who are considered popular, attract members of other ethnic groups to their courts, even though they were supposed to be head of a particular ethnic group. Interaction with tribal heads reaffirmed that this ability to transcend narrow ethnic identity to respond to the conflict resolution needs of other ethnic members has evolved as an important marker of a legitimate tribal court.172 When members of the community report their disputes to the head of another ethnic group, they do so not because of their ethnic affiliation to that head but because they believe he can deliver justice. This cross-ethnic conflict resolution approach

169 For instance, interview with Isatu Bangura conducted on 10 August 2014, ibid. 170 Interview with Junior Momoh Foray conducted on 11 August 2014, ibid. 171 Interview with Mammy Uma Sesay conducted on 10 August 2014, ibid. 172 This interaction is limited to indigenous ethnic groups. To date, Krios, who are descendants of freed slave do not accept the legitimacy of tribal courts. The take their matters to the police or law courts, even when the dispute involved someone of indigenous descent (Interview with Chief Mathew Young conducted on 28 March 2014, ibid.

271

tended to create some competition particularly among numerous subheads in a local community to live up to the expectation of their constituents. For tribal authorities to attract more cases to their courts, they need to enhance their reputation and credibility beyond immediate kinship ties.

This reliance on popular legitimacy resembles the unofficial customary justice system upcountry whose effectiveness depends on social pressure and public participation. At the core of this social mechanism is the expectation that a decision becomes enforceable when both parties accept that it was just and delivered by a trustworthy person.

In addition to the reputation of individual tribal heads, customary justice systems in Freetown possess an internal cultural resonance because their core procedural and substantive justice norms remain rooted in the customary law of indigenous people. We noted above that tribal courts deal with minor civil and criminal matters which otherwise may be untenable in the formal justice system and that they apply the customary law of respective ethnic groups in the western area. Among the features which respondents found meaningful included the fact that dispute resolution was highly consensus-based and emphasised compromise in the interest of restoring social harmony. Most examples indicated that disputes were resolved in a less adversarial manner and both parties usually returned to their community satisfied with an outcome. This internal cultural resonance did not mean that people of indigenous origin were innately peaceful or the upcountry culture proved resistant to change; otherwise there would have been no need for conflict management in the urban ring. Instead, close interaction with communities showed that their value systems have evolved to become relevant to the contemporary informal economy in Freetown. For example, with greater access to information and human rights awareness, the younger generation appears more inclined to question the

272

authority of tribal chiefs but they do so to make them more accountable rather than questioning the institution of tribal authority in its entirety. Majority of youth interviewed believed that elders should be respected as guardians of the community and strongly denounced incidence of disrespect against tribal heads. Almost everybody who participated in this research tended to embrace modern principles of governance, with one respondent suggesting that tribal heads be subject to periodic democratic elections. At the same time, no one saw a contradiction in chiefs having judicial authority to resolve disputes and using their authority to enforce social order at the local level.

The overwhelming majority of interviewees defined the position of tribal head primarily in terms of its dispute resolution function in their community. Upcountry, the symbol of customary justice is a circular palaver hut at the center of the chiefs’ compound. Most tribal heads in Freetown operate in a makeshift structure often roofed with tarpaulin and rusty zinc. When asked what should be done about customary justice in Freetown, a significant number of respondents suggested that these makeshift structures be converted into permanent buildings to symbolize the authority of tribal heads. Even among those who wanted fines to be regulated, the general perception was that tribal courts must be recognized and capacitated as a legitimate local conflict resolution mechanism in the urban ring. A particularly instructive example is kassi, an informal fine regime examined in Chapter 5. In Freetown, most of the infractions covered by kassi falls under the 1965 Public Order Act which is enforced by the regular police. But while the Act is infamously known as a weapon in the hands of the governing elite to crack down on popular protests, silent opposition parties, and stifle freedom of expression, peripheral communities

273

hardly refer to this law to maintain social order.173 In this research, local residents attributed their relatively peaceful coexistence to the effectiveness of kassi which prohibits fighting and use of obscene language in certain communities. Maintaining social control outside the Public Order

Act mirrored the bottom-up approach in rural communities where members agree on what constitutes an infraction, have the right to impose a fine, and count on the authority of chiefs to deal with recalcitrant members. All respondents who spoke about kassi in their interviews stressed that it was a collective decision and tribal heads were involved only to enforce the payment of what has been collectively agreed. This belief in social control backed by a legitimate traditional authority is aptly reflected in this interview which was a response to questions about removing judicial powers from chiefs. Note that this respondent equates the erosion of chiefs’ judicial authority to dissolution of the entire institution.

We don’t like that idea. If the government remove chiefs in certain communities, they have lost control over those communities finally. Only the chiefs can be listened to in those communities. Government should forget about the idea of preventing chiefs from hearing cases. They should just call the chiefs and advise them to work properly. This is Africa and not the western world. If they remove the chiefs, the world would hear about the chaos in this country.174

The Politics of Tribal Authority

Whereas these characteristics are at the core of what makes customary justice socially legitimate in Freetown, it is important to underscore that neither tribal heads nor their courts were found to be completely flawless. Perhaps reflecting the modern environment, it was realized in this research that some elements of customary justice have been modernized to make them fit the

173 For example, the Open Society Initiative for West Africa argues that the 1965 Public Order Act curtails freedom of assembly and expression. 174 Interview with Abubakarr Kamara, a local building contractor working in Regent Village, conducted at his project site on 15 August 2014.

274

urban setting. In particular, it was observed that tribal courts now have a secretary who record statements and some tribal heads have maintained a personal archives of case files. As seen below, instead of relying on verbal invitation, most tribal authorities also issue written summons sometimes typed on a letterhead or an official state logo. The secretary is usually a high school dropout who like other panel members (jurors) receives a share of the income generated from court fees and fines. Moreover, some tribal heads admitted that they have used their informal relationship with the regular police to order an arrest of individuals who refused to respond to their invitation.175

Figure 6.1: Tribal Court Summons Notice

Source. Author. Loko Headman Court, Regent Village

175 Interviews with Chief Moses Kanu, Loko tribal subhead, Regent Village, Freetown, conducted at his residence, Mansaray Drive, on 2 April 2014; Pa Alimamy Sesay, Loko tribal subhead, Banbayilla, Freetown, conducted at his residence on 15 August 2014.

275

Calling on the police to enforce compliance or keeping proper documentation did not seem entirely at variance with the social mechanism upon which customary justice was based. Most respondents wanted the police to empower traditional authorities and some were pleased that their chief could demonstrate he was literate in English. What appeared worrisome for many was the tendency of some tribal heads to use these modern tools to impose a court that lacks legitimacy. Respondents singled out tribal heads who are always out in the community “to buy” cases; that is, rushing to the scene of a dispute in order to compel disputants to report to them.176

Another issue that they wanted to be addressed is the tendency of some courts to impose arbitrary charges for the purpose of deriving private income for tribal heads and their courtiers. It must be noted though that in customary adjudication, some of these charges are determined by the disputants themselves and winners are able to recover some of their expenses. Moreover, most respondents believed that providing tribal authorities with some form of regular stipend would minimize the temptation of using fines as a source of private income as stated in this comment.

The only problem we have is that chiefs may take advantage of their position to make an income from heavy fines. And that’s why some of them charge somebody Le 50,000. So the government should consider giving the chiefs monthly salaries and then stipulate how much they should levy as fines.177

Additionally, it must be mentioned that customary justice in Freetown is also linked to the politics of tribal headship in an expanding cosmopolitan area. The political cost of regulating customary justice upcountry was thoroughly analyzed in the previous chapter and therefore a brief discussion in this section would suffice. From the perspective of tribal authorities, the application of customary law in Freetown relates to an unresolved political question of

176 Interviews with Mammy Uma Sesay, Kapr Conteh, and Abubakarr Kamara, ibid. 177 Interview with Abubakarr Kamara, ibid.

276

superimposing English law upon the majority of indigenous people. They reiterated the argument that independence only changed the question from a purely ethnic matter of Krio domination to an ethno-elitist attempt to institute a system that privileges the educated elites. In most of their interviews, tribal heads argued that the relationship between English law and traditional customary law in the western area has historically been defined by political imperatives masked by issues of legality. Most of them contended that governments have prohibited the application of customary law in the western area in order to legally preserve elitist interest over the needs and priorities of indigenous people. As can be discerned in the following quotation, these tribal heads operate customary justice systems as a demonstration of defiance by indigenous people whom they claim to represent.

And as we all know, adjudication is a matter of choice and I have always been telling them that we have one constitution of Sierra Leone but operating on a two-tier system when it comes to the area of justice. I see no reason why we have the local court system in the provinces but not in the western area. Is it because the Krios who were very influential in those days thought it fit to carve it that only their own kith and kin should have access to the formal justice and that they should deny us the provincials that right? So I have always been telling them that they are not doing justice to our people who have been coming from the provinces. If our people in the provinces have been very much familiar with the local courts but are being denied that aspect in Freetown, they are not doing any justice to them.178

Other tribal authorities do not even see their people as strangers in Freetown. For instance, the

Temne tribal head reminded this researcher that his people were the original inhabitants of the western area before the arrival of freed slaves and establishment of colonial rule. He also insisted that the government should accord them the same recognition as paramount chiefs including a medallion to show that they are tribal authorities when attending public functions. Another

Temne subhead put this claim more assertively in his interview:

178 Interview with Mathew G. Young, ibid.

277

I want the government to remember that before the coming of the white man and so- called discoverers like Pedro da Cintra [European discoverer], chiefs and native people were living here. You had native rulers such as King Tom, King Naimbana, and King Jimmy, whom they met governing their people. This is why we are displeased with attempts to sideline us. They are undermining our authority. If our people respect us as their mouthpiece and they bring summons to us, the lawyers are simply undermining our authority by blocking us from sitting on those cases.179

This situation has over the years been compounded as election became the mode of selecting politicians. At the level of local governance, Manning (2009) has argued that indigenous people have taken advantage of their numerical strength to access political positions that have been traditionally dominated by the Krios in the western rural district. Election for local council offices is changing the indigene vs. stranger dynamic in which Krios used to regard people from upcountry as strangers who did not have right to political authority in the western area.

Moreover, voters of various indigenous groups have become crucial not only in selecting national representatives of the Freetown constituency but also in swinging national election results between the two major political parties. In the same way as paramount chiefs have been relied upon to mobilize votes in local chiefdoms so too have tribal authorities become central in galvanizing support for political parties among their people. This is why one local governance analyst stated in his interview that the damage caused by removing tribal structures from

Freetown could only be political, a price that no politician seems willing to pay at the moment.180

Some tribal authorities have taken advantage of this political capital not only to acquire tribal headship but also to obtain tacit approval from elected politicians to operate unofficial structures such as tribal courts in Freetown. Politicians loathe the operation of tribal institutions at the heart of central state systems but the political stakes are high to order any crackdown. One lawyer who

179 Informal interview with a Temne Tribal subhead in the Waterloo area, conducted on 2 April 2014. 180 Interview with Emmanuel Gaima, ibid.

278

is among a few legal practitioners to challenge tribal courts in Freetown put his experience this way:

The situation is so difficult and you have the politicians again condoning these things in our society. I challenged a local chief in Goderich [a peri-urban community in Freetown] who told me he was given paper by a senior politician and he was crowned and recognized in this country by no lesser a person than the Vice President. So the other problem is that once they are not well informed and the politicians would not stop them because they want votes, they would always think that what I am doing is correct. The politicians are there and they are not condemning it. So this is the difficult situation we find ourselves in this country and they are all over the place.181

In short, the interaction between formal and informal justice in Freetown depends on what constitutes a legitimate customary justice system and who determines the authority of tribal heads. Interviews and observations have revealed that a more bottom-up approach that takes into consideration the conflict resolution needs of people would recognise customary justice as a complement to the formal state system. This consideration relates more to the social relevance of conflict resolution mechanisms than to the legality of a justice system. People who recognized the judicial authority of tribal heads did so not in complete opposition to the state justice system.

Rather it was an acknowledgement of the cost of accessing state institutions and the fact that there were pressing disputes which could not be accommodated by those institutions even if they attained optimal efficiency. Local residents seem to know that certain cases are beyond the capability of tribal authorities and would want to proceed to the formal system when local options have been exhausted. However, those decisions were mediated by the exigencies of the informal economy and the ability of the state system to respond in a timely and cost-effective way. When the cost of access outweighs the potential benefit of seeking formal redress, pursuing settlement out of the system is considered a rational decision even for major criminal matters.

181 Interview with Robert Kowa, ibid.

279

But interaction with state institutions and elected politicians is complicated. Although tribal heads can informally employ the coercive authority of the regular police to enforce a decision, overreliance on state coercion always has the looming danger of undermining the social mechanism which reinforces the legitimacy of customary justice. The same danger looms when tribal authorities take advantage of a patron-client relationship with politicians to impose an unpopular court. Human rights activists are justified to describe such courts as mechanisms for generating private income. Yet this study cautions not to overstate this phenomenon or to use instances of these courts to delegitimize the vast majority of customary justice systems performing vital conflict resolution functions, often as a complement to an inadequate state justice system. Interviews and interactions with users of customary justice systems also revealed the need to go beyond the legality of conflict resolution mechanisms to exploring their social relevance, legitimacy, and authority. Consistent with the situation upcountry, these social imperatives are sometimes the most important considerations for users of justice systems who cannot afford legal redress to pressing problems in the peripheral urban ring. The next section continues to explore these fundamental issues through an additional case outside the Sierra

Leonean experience of post-war justice reform.

Dual Justice System in Post-conflict Liberia

As underscored in Chapters 3 and 4, Liberia has a dual justice system comprising a hierarchy of formal courts operating under the judiciary and a system of customary courts originally authorized under the Hinterland Regulation. This dual system emanates from the central state’s effort to extend its authority over the hinterland through indirect rule implemented by the

Ministry of Internal Affairs. It is also a legacy of past Americo-Liberian domination during

280

which a separate legal system was designed for indigenous Liberians who were regarded as

“uncivilized” to be governed under statutory laws. But unlike Sierra Leone where customary justice has formally been incorporated into the judiciary, Liberia has maintained its prewar institutional arrangement whereby customary justice systems are administered separately under the Ministry of Internal Affairs, a central ministry in the executive arm of government. Hence, chiefs and local government officials have judicial authority to perform administrative adjudication including the application of customary law and settlement of disputes within their localities.182 The 2005 revised Rules and Regulations Governing the Hinterland of Liberia states that paramount chiefs “shall adjudicate all domestic and cultural matters, including relevant matters from the chiefdom to the clan chief’s office” (Ministry of Internal Affairs, 2005).

The chiefs’ courts operate as local palaver huts in the same way as court barrays in Sierra Leone, except that chiefs in Liberia have legal authority unlike their counterparts in Sierra Leone.

Decisions in chiefs’ courts are not subject to judicial review; rather an appeal against them can be made to the district commissioner, county superintendent, and then to the Internal Ministry’s

Office of Tribal Affairs in Monrovia which acts as a final court of appeal (International Crisis

Group, 2006).183 According to the Superintendent for Native and Internal Affairs, chiefs’ courts

182 This distinction is important because the analysis that follows is not exactly between formal and informal institutions as defined in this research. That chiefs’ courts are recognised by the government means that their decisions can be enforced within the official state channel unlike Sierra Leone where unofficial customary justice operates largely outside the state realm. Thus, the contrast in this section is not between state and non-state institutions per se; but rather between the formal judiciary and the state-constituted customary justice system. 183 The traditional authority structure of Liberia is similar to Sierra Leone, except for the position of a clan chief. At the time of this research, Liberia was still in the process of revising the local administrative structures that were set up during the war period. Since the end of civil war, there has been no chieftaincy elections and therefore some of the chiefs imposed by rebel forces were still operating in an acting position (Interview with Chief Momoh Kiazolu, Vice Chairman of the National Traditional Council on Liberia, conducted on 24 July 2014).

281

in Liberia are not a court of record because decisions are not based on recorded statements.184

However, fines are paid to the revenue authority and disputants bring their receipt to the courts in order to make sure that the money go into government coffers. These courts have what the

Superintendent called “out-of-record” charges such as sitting fees which go directly to the chiefs and their panel of elders. When decisions made by traditional authorities are appealed against in the Ministry of Internal Affairs, the matter goes through a review panel supervised by the Deputy

Ministers of Legal Affairs and for Customs and Culture. If the matter requires judicial action, the

Minister of Legal Affairs would make a request to the police or law courts to act accordingly.

But beyond this legal and institutional framework, how do formal and customary justice systems interact within the social context and economic realities of post-war Liberian societies?

Accessing Justice in Hard-to-reach Areas: Grand Gedeh County

Consistent with a statement issued by the Legal Working Group (LWG) in Liberia, the majority of participants in this study confirmed that “customary justice institutions have survived the civil war and / or been revived after it, and remain active in most rural Liberian communities” (LWG

2009, 2).185 As in Sierra Leone, the resilience of customary conflict resolution in Liberia is in part attributed to the fact that the formal justice sector continues to suffer from considerable capacity and credibility deficits. In fact, based on interviews conducted in Monrovia, it seems

184 Interview with Daniel F. Weetol, Superintendent for Native and Internal Affairs, Ministry of Internal Affairs, conducted at his office in Monrovia on 24 July 2014. 185 The Legal Working Group (LWG) of Liberia is made up of prominent legal scholars from relevant government institutions, the bar association, civil society, and the law school. This statement is an outcome of four meetings organized to explore key issues affecting access to justice in Liberia including constitutional questions of separation of powers, due process and equality, and the legal framework governing the dual system. Members of the LWG met with traditional leaders in three counties to discuss differing perspectives, common concerns, and possible options for reforming the dual justice system. UNMIL, the United States Institution of Peace, and the Carter Center provided support to these discussions.

282

that Liberians are concerned that the few justice reform initiatives being implemented would not be sustained as external partners scaled back their support to the post-conflict recovery agenda.

According to one senior judge, there is no organized and coherent national justice reform strategy in Liberia, apart from the immediate post-war interventions funded by international partners such as the USIP, American Bar Association, Carter Center, and UNMIL.186 Thus, the primary challenge confronting the formal system is not whether the reform process has been externally driven but that such initiatives are grossly inadequate and being reversed as donor assistance dwindles. Even outside Monrovia, about two-thirds of those interviewed in this research expressed both appreciation particularly for UNMIL’s assistance to the justice sector

(the most visible donor agent) and concerns about the national political will and capacity to sustain their interventions in the long-term.187

Other respondents were quite unequivocal to state that “there is no justice for the poor here,” referring to the cost of seeking redress through the formal justice system. Most of the accessibility issues facing the majority population are similar to those in Sierra Leone discussed in Chapter 4 and in line with findings of previous studies on Liberians’ experience with and perceptions of justice options.188 In particular, “the formal system is widely regarded as being prone to corruption and often chosen when individuals believe they can gain an advantage over

186 Interview with Councillor J. Lavalie Supuwood, Circuit Court Judge in Monrovia, conducted at his residence in Paynesville, Montserrado County on 20 July 2014. 187 Examples include interviews with Otif Dolu, Consultant of the National Human Rights Commission of Liberia, conducted in Zwedru Town, Grand Gedeh County on 18 August 2015; Paulina Manga, Senior Community Assistant for UNHCR, conducted in Zwedru Town, Grand Gedeh on 19 August 2015 188 Of these recent studies, the most notable are Deborah H. Isser, Stephen C. Lubkemann and Saah N’Tow, “Looking for Justice: Liberian Experiences and Perceptions of Local Justice Options” (Washington DC: USIP Press, 2009); and Bilal Siddiqi and Justin Sandefur, “Community Based Justice and the Rule of Law in Liberia,” (Oxford: Centre for the Study of African Economies, 2009).

283

another party by exploiting personal power, social connections, or wealth” (LWG, 4).189 Also, one local resident in Monrovia who has taken a matter to court stated that proceedings in the formal courts are often subject to undue delays, sometimes deliberately orchestrated to frustrate those who cannot afford the cost of many adjournments.190 There is a public defender system which is supposed to provide free legal representation to people who cannot afford the service of a lawyer but the few public defenders are overwhelmed with cases and the system does not cover civil cases like land disputes which are becoming increasingly frequent, according to a senior judge.191 This perception that justice is available to the highest bidder is even shared by some educated Liberians and local peacebuilding experts as this interview illustrates.

The reality of what we have is an injustice system—a system that perpetuates injustice. But conventionally they call it a justice system because they have a statute in front of the court building that says let justice be done to all people. The reality is that there is no justice for the majority of the people because they don’t have access to money to afford justice. You give money for ruling and it goes into somebody’s pocket. Judges are bribed, jurors are bribed.192

Since the administration of formal justice is highly centralized in Monrovia, these challenges become acute for people living farther away from the administrative center in rural counties, districts, and villages. For instance, Krahn-dominated Grand Gedeh of Southeastern Liberia is the third largest county in the country and historically one of the most neglected.193 Just before this research, the county’s population was about 140,934 inhabitants and its total landmass

189 These findings were also contained in a report prepared by the Legal Working Group of Liberia (adopted on 10 December 2009). 190 Interview with Augusta Yeano Wongbein, a retired secretary in Monrovia, conducted at her residence, 72 Pelle Town, Paynesville, Montserrado County on 18 July 2014. 191 Interview with Councillor Supuwood, ibid. 192 Interview by Togbana Tipoteh, Founder of the Movement for Justice in Africa, conducted at the Mamba Point Hotel in Monrovia on 26 July 2014. 193 This background information about Grand Gedeh is derived from The Grand Gedeh County Development Agenda (2008-12), prepared by the County Development Committee in collaboration with the Ministries of Planning and Economic Affairs and Internal Affairs of Liberia.

284

estimated at 10,276 square kilometers.194 A typical rural Liberian county, the roads linking

Grand Gedeh to other parts of the country are in deplorable condition, unpaved for the most part and almost impassable by vehicle during the rainy season.195 The Liberian National Police had about 86 police officers deployed in the entire county, with 39 of them stationed in the headquarter town of Zwedru while the rest were distributed across the remaining 7 districts which contain 16 chiefdoms and 236 smaller towns. The local judiciary included one circuit court operating on a quarterly basis and courts for traffic, revenue, and debt offences, all housed in the same building at the central town of Zwedru. In addition, there were 8 magistrate courts and about 20 poorly-resourced Justice of the Peace (JP) courts.196

In this context, almost all of the 12 local residents interviewed expressed disappointment with the performance of the state justice system in the county. In a rural economy where the main source of income is small-scale farming and artisanal gold mining, seeking legal redress in

Zwedru town is considered too expensive, time-consuming, and complicated. Those living in what is known as “hard-to-reach” communities of the county have to travel on motorbikes or trek long distances to attend court sessions and there is only one county attorney for those who cannot afford a lawyer in criminal cases. What exacerbates this cost of formal justice is that Liberia’s economy has been built on a dual currency to the extent that most services are paid for in US dollars rather than the Liberian Liberty. As one local resident rhetorically asked, when would a petty trader be able to raise the sum of $1500 to hire the service of a lawyer?197 Others also

194 Grand Gedeh County Development Agenda (2008-12), ibid, p. 2 195 County Development Agenda, ibid, p. 23. Also, most of those interviewed in the county lamented the county’s deplorable road situation, especially from Ganta to the headquarter town of Zwedru. Some recalled periods of food shortage and price hikes when vehicles were unable to use the road to transport commercial goods from Monrovia. 196 County Development Agenda, ibid, p. 20. 197 Interview with Sara A W Sumo, business woman, conducted at her residence, 72 Pelle Town, Paynesville, Montserrado County on 31 July 2014.

285

mentioned that there are other miscellaneous charges of using the police and courts such as buying fuel for police motorbikes, paying for bail even though it is free, or buying stationery for statements to be recorded.198 Apart from the cost of access, they stated that survival in a rural economy meant that the time spent in formal litigation may cost people their livelihood just as the situation in the urban periphery of Freetown.199The artisanal gold miner has to be on site everyday just as a non-mechanised farmer whose daily small-scale harvest is the source of livelihood for a family.

Instead, participants admitted that they and many residents in Grand Gedeh whom they know resolve their disputes outside the formal justice system, making use of particularly their local clan chiefs, town chiefs, or community chairmen.200 Even before asking about their experiences with informal justice, most participants disclosed their preference for resolving disputes out of court—meaning outside Zwedru town. Such unanimous preference for customary mechanisms again reflected findings of the two previous studies on this subject-matter corroborated by consultative meetings conducted by the Legal Working Group meeting held in December 2009.

All of these reports found that “the customary justice system serves many positive purposes including providing an accessible, affordable, and efficient means of resolving disputes” (LWG,

2). They indicated that the majority of disputes—both civil and criminal—that reach resolution, are resolved through some form of customary justice because of its accessibility and

198 Interviews with Patience, a community radio broadcaster, conducted at her residence in Zwedru on 19 August 2015; and Stephen Jabateh, a local resident of Zwedru, conducted on 20 August 2015. 199 Interview with Toma Koi, Community Justice Adviser of the Justice and Peace Commission, conducted at her residence in Grand Gedeh on 18 August 2015. 200 It must be noted that these mechanisms are not necessary non-state systems. A matter brought to the attention of a rural town chief can potentially go through the local administrative hierarchy up to the Ministry of Internal Affairs in Monrovia. The main difference between the formal judiciary and customary system is that the latter is less formal and operated by decentralized traditional authority structures visible in every rural community.

286

effectiveness relative to the formal system (CSAE 2009; LWG 2009; USIP 2009). As this comment below exemplifies, one of the main reasons why local residents turn to chiefs’ court is their availability in every part of the Grand Gedeh community, a similar experience to rural

Sierra Leone.

We have our chiefs. We have town chiefs, zonal heads, clan chiefs, paramount chiefs, and community chairmen. We have a lot of leaders here. These tribal leaders handle traditional issues and when you do not have money to go to court. Most cases start with these leaders who can resolve it or involve the police if the matter is going out of hand. It is very difficult to see tribal cases from the various communities brought to the big town because these communities have leaders. I like these leaders because they are highly involved in conflict resolution issues. I like the way they do their work because they don’t take a lot of money.201

These accounts of the popularity of customary conflict management mechanisms were corroborated by interviews with human rights activists in Grand Gedeh including Community

Justice Advisers of the Carter Center’s Peace and Justice Commission who monitor the formal justice sector and conduct small-scale mediation. All of the 5 activists interviewed attested to the daunting task of accessing the police and courts, reiterating issues of infrequent court sittings as well as paucity of legal practitioners in rural areas outside Zwedru town. They disclosed that the few judicial officers posted to the county reside in the headquarter town because of deplorable living and operational conditions in peripheral areas. These activists commended local chiefs for presiding over informal mechanisms which they described as useful to fill the justice void by providing a cost-effective and timely management of disputes in hard-to-reach areas. Most of them stated that chiefs’ courts are popular because they are readily available and free of formal procedures such as statement recording which may delay prompt attention to a pressing

201 Interview with Patience, ibid.

287

matter.202 But in addition to their effectiveness, it also seemed that chiefs’ courts were operating in tandem with the local conception of justice and the conflict resolution priorities of rural communities as discussed below.

Resolving Dispute without Enmity

Liberians who participated in this study subscribed to the view that resolving dispute through the formal justice channel undermines interpersonal relationships and breeds enmity that may affect long-term coexistence, particularly in homogenous communities. From the interviews, two interrelated factors were discernible as reasons for this local dispute settlement norm and they reinforce analyses of the Sierra Leone cases. First, this justice norm reflects the social organization of most rural communities in Liberia where there is a strong sense of informal reciprocal obligation. In these communities, decision about appropriate redress is shaped by past social interaction as well as consideration of how to minimise harm to long-term kinship relations. In other words and as the comment below suggests, consideration of what to do about a dispute takes into account social issues that may seem extraneous to the matter in question but which are affected by the way such dispute is eventually resolved.

I remember an incident in which I reported someone to the police. It was about a false allegation made by one neighbor that I am in love with her husband. I took her to court but later I was prevailed upon to remove the matter from court for in-house settlement. I agreed to withdraw that case from the court because of the man’s relationship with my husband. He was a nice man and helpful to my family. When they were looking for Gio people during the Doe era, he was protecting my husband. Also they brought big people who are in a position to appeal to me. I accepted their plea without taking a cent from them.203

202 Interviews with Toma Koi, ibid; Bamu of the Justice and Peace Commission conducted at her office in Zwedru Town on 19 August 2015; Otif Dolu of the National Human Right Commission, conducted at his office in Zwedru on 18 August 2015; Paulina Manga of UNHCR, conducted at her residence in Zwedru Town on 19 August 2015. 203 Interview with Augusta Yeano Wongbein, conducted on 18 July 2014, ibid.

288

This respondent’s decision to withdraw a case from the police was informed by memory of an assistance a neighbor offered her family during the civil war in Liberia that witnessed pro- government Krahn people attacking members of the Gio ethnic group. What further motivated this decision was the instrumentality of “big people” whose reputation in the community could be relied upon as moral guarantor for conflict resolution. These people were in a position not only to appeal to this lady but also to guarantee an end of enmity between both parties.

The second and perhaps more important reason for out-of-court settlement is a concern that court procedures may subject someone to undue financial expenses. The majority of respondents held the view that subjecting a neighbour to huge financial losses in a minor dispute could have harmful social consequences because that individual would be offended by such expenses. The main point here is the tendency for the state justice system to impose hardship on people in a manner disproportionate to the original offense. This is a serious consideration in a poor rural county like Grand Gedeh where a “court case” may cause families to sell their property, pledge their land, or incur huge debts, as some of the respondents attested. Human rights activists noted that they deal with many cases in which individuals are kept in detention for minor offences because their families do not have financial resources to facilitate their bail or simply due to neglect of the system. Beyond the required punitive measures taken in respect of an offence, these extra hardship of dealing with the formal justice systems help explains why Liberians seemed reluctant to take their neighbors to court. Taking someone to court in itself is viewed as an act of enmity, particularly in this close community whose Krahn-speaking people constitute about 96% of the county’s population divided into 32 local clans.204 In such a community, people

204 Grand Gedeh County Development Committee, ibid.

289

are interested in preserving kinship relations not merely because of their cultural and linguistic affinity but because of the likelihood of retaliatory consequences in a locally shared space, as these respondents emphasized. “When resolving dispute in the traditional way, chiefs always remind the complainant that the same problem may fall on him tomorrow,” one respondent mentioned in her interview.205 Another saw the whole idea of avoiding “court case” as Liberians’ way of thinking about justice as follows:

We have what we call community settlement. If people are having a dispute in a household, the landlord would get involved. If the landlord is not around, they would take the matter to the town chief. If the town chief cannot resolve it, then it is forwarded to higher authorities. People prefer to settle their cases out of court because Liberians have a way of thinking. If someone takes you to court for just a minor issue, then he becomes your everlasting enemy. So you just don’t take someone to court like that.206

Refraining from formal litigation especially in minor offences is synonymous to the family ordinance of internal dispute resolution in Sierra Leone. Moreover, such local conception of justice is consistent with the kind of dispute resolution that customary justice systems provide— their emphasis of social reconciliation, consideration of a broader set of social interests, and attention to additional social factors that inform a dispute.207 Chiefs’ courts, which are the main channel of customary justice in Grand Gedeh, have official status but in order to achieve these broader social goals they operate as informally as possible. For example, the Vice Chairman of the National Traditional Council stated that their investigation always involves family members of both parties so that they can make a collective decision in the interest of disputing parties and their families. Rather than using state coercion to enforce decisions, sometimes family members are relied upon to exact pressure on disputants and these members may even pay a fine when the

205 Interview with Musu Teng, local resident in Grand Gedeh, conducted at her residence in Zwedru town on 19 August 2015. 206 Interview with Musu Teng, ibid. 207 These principles were identified and adopted by the Legal Working Group of Liberia (December 2009).

290

truth is revealed.208 The Superintendent of Native Affairs also insisted that lawyers are not allowed in chiefs’ court in order to make the parties feel comfortable.209

This local justice norm of finding compromise for the sake of social harmony does not preclude a search for the truth. Traditional authorities are interested in revealing the truth about a dispute and sometimes they make use of traditional medicine to establish guilt, according to one local resident.210 He cited the example of sassywood (trial by ordeal) which may include a concoction that may be dropped in the eyes of suspects to induce them to confess their action, particularly in cases of theft and witchcraft.211 He disclosed that sassywood is applied mostly by powerful traditionalists known as zoes who possess spiritual power to compel confession.212 This traditional method has been criticized by human rights groups as a barbaric practice amounting to torture, but local residents underscore its relative effectiveness in soliciting confession.

Moreover, there are other practices known for promoting social reconciliation following truth- telling. One respondent portrayed customary justice as a “win-win mediation at the community level” which “promotes peaceful coexistence, oneness, and togetherness in the community.”213

She also stated that “the elders would ask for a chicken to prepare a meal which both parties would share and let bygones be bygones.”214 Another participant viewed informal conflict

208 Interview with Chief Momoh Kiazolu, Paramount Chief of Ndegbo Chiefdom, Montserrado County and Vice Chairman of the National Traditional Council of Chiefs’ Affairs, conducted at his council office in Monrovia on 24 July 2014. 209 Interview with Daniel F. Weetol conducted on 24 July 2014, ibid. 210 Interview with Stephen Jabateh, local resident in Zwedru Town, conducted on 20 August 2015, ibid. 211 Other sources have stated that sassywood also involves the placement of a heated metal on the body of suspect to determine guilt (e.g., Global Security at: http://www.globalsecurity.org/military/world/liberia/lnp.htm, accessed on 12 January 2016), but no respondent in Liberia mentioned this type of traditional medicine in their interviews. 212 Zoe is a spiritual title and some herbalists are zoes. There are two types of zoes including those who coordinate the activities of secret societies and herbalists who claim the power to heal people. Herbalists are not necessarily chiefs but chiefs are members of secret societies (Interviews with Directors of Research and Development Planning, Ministry of Internal Affairs, conducted on 23 July 2014. 213 Interview with Musu Teng, ibid. 214 Musu Teng, Ibid.

291

resolution as being “down to earth” and chiefs as authorities who “dialogue with their people to handle situations before they explode into something big.”215

What seems striking in these interviews is the fact that human rights activists, who tend to be the most vocal critics of traditional practices, also offered some favorable comments about customary justice systems because of their social relevance in local communities. The two community justice advisers stated in their separate interviews that the Carter Center is working with chiefs because “they are responsible for bringing their people together” and “they leave their farm work each day to settle disputes” in local communities.216 Similarly, this activist appealed that chiefs be placed on a regular payroll because “they are close to their people and even work well than the police but they are not being paid.”217 These comments are noteworthy considering that they were made by individuals who had no vested interest in traditional authority and interviews were conducted without the influence of any local elite. That respondents in Liberia were re-echoing most of the comments made by local residents in Sierra

Leone also strengthened findings about the legitimacy of customary justice in post-war societies.

It cannot be a mere coincidence that respondents from varying sociocultural backgrounds across borders are agreeing that customary conflict resolution mechanisms remain effective and indispensable to the justice needs of their post-war societies.

215 Interview with Victor Vandi Sahid, Coordinator, Women and Adolescent Girls Empowerment Program, conducted in Paynesville, Montserrado County on 17 August 2015. 216 Interviews with Toma Koi and Bamu of the Peace and Justice Commission, conducted on 18 and 19 August 2015, respectively, ibid. 217 Interview with Paulina Manga, conducted on 19 August 2015, ibid.

292

Multiple Centers of Judicial Power

Although the discussion above strongly suggests that customary justice mechanisms are more effective and socially relevant than the formal system, both systems interact in complex ways.

State regulation of customary justice in Liberia is not about whether traditional authorities have judicial authority to settle dispute as in Sierra Leone. Rather, the interaction between the two systems revolves around defining appropriate jurisdictional boundaries, considering human rights issues, and ensuring the pre-eminence of state authority across the country. These issues were identified by the Legal Working Group as areas of constitutional and legal concerns to the state and they relate to the state’s responsibility to bring justice to crime, in particular crimes of murder and rape. This study also confirmed through interviews that these concerns are at the core of regulatory efforts in Grand Gedeh. According to officials of the Ministry of Internal Affairs, superintendents and commissioners provide executive oversight to traditional authorities and all of them work with branches of the Liberian National Police and judiciary in their counties.218

The Superintendent for Native Affairs stated that traditional authorities could, through the district commissioner’s office, transfer a matter to the judiciary for formal investigation. If the matter involves detention, the Deputy Minister of Legal Affairs has to be involved for the purpose of avoiding human rights violations in administrative adjudication.219

In terms of how these institutions interact at the operational level, one noticeable characteristic in sharp contrast to the Sierra Leone experience is the relative absence of parallel unofficial mechanisms competing with the state-constituted justice system. There are what the International

218 Interviews were with Directors of Research and Development Planning and the Superintendent for Native and Internal Affairs, Ministry of Internal Affairs, conducted on the 23 and 24 July 2014, respectively. 219 Interview with Daniel F. Weetol, ibid.

293

Crisis Group (2006) termed outside-the-state customary law systems that operate outside executive review. Secret societies fall under this category. There were allegations by human rights activists in this study that leaders of these groups tend to hand down harsh judgments on people who violated their social norms but it was almost impossible to independently verify those accounts. The only outside-the-state system that was quite visible included community chairmen which some respondents linked to the war period when it was necessary to get a community leader to distribute humanitarian relief. Since the end of civil war, these chairmen have made themselves relevant by resolving disputes among people who wanted compromise or could not afford formal justice.220 Community chairmen are located in urban towns and their conflict resolution activities are not officially recognized, although they have been able to develop informal relationships with law enforcement agencies. Through these informal connections, local residents could count on the chairman to withdraw a matter from the police for community settlement.

However, these unofficial mechanisms did not seem to be competing with the state-recognised justice system as was evident in the relationship between chiefs’ courts and local courts in rural

Sierra Leone. No respondent mentioned the phenomenon of “Kangaroo Courts” or a similar occurrence in Liberia. For secret societies, this absence of competition may be due to the fact that traditional authorities are often the same personnel that who preside over both the state- recognised chiefs’ courts and secret society bushes. Also, there is no incentive for chiefs to operate a separate unofficial court if their judicial authority remains recognized by their “home” ministry, the Ministry of Internal Affairs. The only contentious issue between primary justice

220 Interview with Augusta Yeano Wongbein.

294

actors is jurisdictional; that is, determining who has prerogative over certain types of cases. The

Traditional Council’s Vice Chairman defined the jurisdiction of chiefs this way:

Here, we have two systems of law. We have the customary law and the English law. If you have a matter relating to tradition, a minor dispute, or you don’t have money to go to court, you can come to us and we would solve it. We deal with domestic disputes about marriage and land cases. We can ask judges to give us cases we think could be settled out of court.221

As this response indicates, there is ambiguity around which cases are related to tradition and what constitutes a minor dispute. Matters related to customary marriage, civil property rights, secret societies, and witchcraft can be easily categorized as related to local customary law. But there is ongoing jurisdictional dispute over criminal matters. Despite the promulgation of new laws about jurisdictional delimitations, all human rights activists involved in this study noted that traditional authorities have a tendency of dealing with cases related to domestic violence and criminal matters including rape and assault which are meant for the criminal justice system.

Referring to the monitoring and educational activities of the Carter Center, this quotation succinctly states these jurisdictional issues.

The Carter Center is progressively working with traditional leaders to incorporate human rights into their systems. The rape issue is one area that the traditional leaders have to respect. They should not handle issues that are of a criminal nature such as murder, wounding, and rape. These issues should be prosecuted by the state because they deal with state law. The Carter Center and government are working with traditional leaders to draw the line of demarcation as to where the traditional justice system should put their attention or not. It was challenging in the beginning because some said they want to take our culture and values away.222

This tension over jurisdiction comes to the fore particularly in land disputes, which do not only raise the question of legal ownership but also have the potential for violent clashes that may undermine local peacebuilding processes. It was stated in Chapter 4 that land and its natural

221 Interview with Chief Momoh Kiazolu, conducted on 24 July 2014. 222 Interview with Otif Dolu, conducted on 18 August 2015, ibid.

295

resources were central to Liberia’s post-war economic recovery with investors advancing into rural areas after securing large-scale land concessions from Monrovia. Alongside the competition for large-scale land acquisition, conflicts over ownership of communal and family lands have also been intense as a majority of respondents admitted. One respondent warned that “you have to be very careful when buying land in Grand Gedeh because a plot of land could be sold to multiple buyers which then leads to conflict.”223 Another exclaimed that “land disputes are very serious” citing an incident in which multiple buyers of a plot of land got into bloody skirmishes that resulted in a couple of deaths and serious injuries.224 Considering the seriousness of this issue, the government established the Land Commission to deal with disputes pertaining to land but customary law still recognizes chiefs as custodians of communal land on behalf of the indigenous people.225 In the absence of legal documentation, traditional authorities’ collective memory and eyewitness accounts have been useful to resolve ownership and boundary disputes in rural areas. At the same time, the Land Commission operates a land claims court which is responsible for formal adjudication. Local residents stated that some land cases were resolved by chiefs, others were transferred to the Commission by the County Superintendent, and some required collaboration among these three authorities.

Dealing with multiple centers of authority also has the potential for undermining justice, particularly in cases where decisions are based solely on executive authority. To put this problem into proper context, it must be recalled from previous chapters that the executive is the most powerful branch of government in Liberia. One respondent equated the authority exercised by

223 Interview with Stephen Jabateh, conducted on 20 August 2015, ibid. 224 Interview with Victor Said Vandi, conducted on 17 August 2015, ibid. 225 Interview with Chief Momoh Kiazolu, conducted on 24 July 2014, ibid.

296

commissioners and superintendents to that of the presidency but at a lower level. In addition, these officials are appointed by the central government whose executive backing is also required for chiefs who have not undergone elections since the end of civil war. Where chiefs depend on ministry officials for authority to rule, it is easy for the link between the two to take the form of a principal-agent relationship. Although no specific examples were cited, some respondents suspected that the superintendent has the power to call lower traditional authorities to let them know he has an interest in a particular case. In such instances, local chiefs would be hard pressed not to take “orders from above” because superintendents can conduct an executive review or take executive action against a chief in question. For large-scale land acquisition in particular, local chiefs would find themselves in a difficult position as custodians of communal land and at the same time agent of the central executive which may be interested in commercial investment.

The example of recent conflict between a palm oil company known as Golden Veroleum (GVL), the central government, and people of neighboring Sinoe County is essential to illustrate this tension in primary justice systems. In a July 2015 report, an environmental rights NGO, Global

Witness, documents the activities of GVL to spread its palm oil plantation over an area of interest amounting to 350,000 hectares of land secured through a concession agreement with the

Government of Liberia. The contract is valid for 65 years until 2075 with the possibility for a further 33years extension. According to Global Witness, oversight and support to communities affected by concession agreements decreased dramatically during the Ebola outbreak (2014-15) as civil society groups focused attention on sanitation and health issues. It was during this period that GVL sought to accelerate the signing of MOUs with local communities so as to convert their land into plantations. But the company faced huge resistance from the local community leaders

297

who refused to cooperate with the company and government to sign the MOUs arguing that conditions were not favorable for free and informed consent in the interest of their community.

The stance taken by traditional authorities offended the Senator for Sinoe County, Milton

Teahjay, who had previously served as the County Superintendent and owns a house rented as an office for GVL staff. Global Witness argues that the Senator was behind a slew of “retributive firings” that have recently taken place in the county. On 27 November 2013 the town chief of

Tarjuwon, who did not attend an MOU meeting called by Senator Teahjay, was dismissed for

“inciting citizens of your jurisdiction to obstruct and abort government development progress”

(quoted in Global Witness 2015, 15). That same day, the town chief was replaced by a man who signed the Tarjuwon MOU. The Ministry of Internal Affairs disapproved of the Superintendent’s action but failed to reinstate the dismissed chief. Similarly in 2012, the town chief of Butaw was immediately suspended after reporting about the damaging impact of GVL’s operation in his community.226 Global Witness insists that these arbitrary dismissals follow a pattern occurring elsewhere citing the removal of a paramount chief in the Equatorial Palm Oil Plantation in Grand

Bassa who publicly denied that his community had granted consent for palm oil expansion on their land. This report on GVL states that “MOU signing ceremonies have been marred by intimidation from local government officials” as part of a common trend in Liberia “where local leaders are quickly dismissed when they do not fall in line with the official government position”

(15). Earlier in June 2011, President Sirleaf had warned people of Sinoe County against

“unpatriotic non-nationalistic behavior” that would undermine GVL operations and discourage

226 Roundtable on Sustainable Palm Oil, Principles and Criteria for the Production of Sustainable Palm Oil, 25 April 2013, Principle 2.3 (quoted in Global Witness 2015).

298

potential investors.227 The Minister of Justice, Benedict Sannoh, issued a statement in February

2015 warning local communities to “stay away from concessionaries as the government will not countenance any action that will obstruct or otherwise disrupt the smooth operations of concessionaries operating therein.”228

Some of these issues are mediated simply by distance between the location of a dispute and availability of formal authorities. For example, concerns about a justice vacuum in hard-to-reach communities have shaped the debate about regulating customary practices such as sassywood in

Liberia. In 2008, the Traditional Council released a “resolution regarding critical issues facing

Liberia and its traditional people” following three consultative conferences with traditional leaders held in Bomi, Bong, and Grand Gedeh Counties. In these consultations, participants from

Grand Gedeh agreed that sassywood should be abolished in their county while other forms of traditional dispute resolution such as “sand cutting” should be licensed by the Minister of

Internal Affairs. Yet all regions insisted that “if the practice of sassywood is abolished the government needs to provide an alternative to the practice that will be reliable and credible in the eyes of traditional people in addition to putting mechanisms into place at the rural level to meet law enforcement and deterrence requirements” (Resolution 5).229 This concern was re-echoed by the Legal Working Group. The statement adopted in 2009 states that “state policies that are constraining the scope of action of customary courts and certain practices (such as trial by ordeal) without offering viable alternatives are leading to perceptions of a growing justice

227 This speech was delivered at the center of GVL’s oil palm nursery in response to protest organized by citizens of Butaw community against the company’s conversion of their land without their consent. 228 Statement by the Minister of Justice and Attorney General on the disputes between concessionaries and citizens of various counties, especially the current disputes in Maryland and Sinoe Counties, issued on 24 February 2015. 229 This Resolution was signed in August 2009 by Chief Zanzar Kawor, Chairman of the National Traditional Council of Liberia.

299

vacuum” (Para. 1B6). As well, local residents in Grand Gedeh confirmed in this research that such practices are still being carried out in peripheral communities where available local mechanisms remain vital to resolving disputes that may otherwise undermine peaceful coexistence at the sub-national level.

Conclusion

These practical experiences provide a solid basis for concluding this analysis of customary justice in post-conflict Liberia. At the national legal and policy level, customary justice systems are designed to conduct administrative adjudication under the Ministry of Internal Affairs separately from the judiciary. This means customary justice is administered alongside the formal justice system with little or no formal linkages such as an appeal system or judicial review. This arrangement helps to decentralize customary justice and preserve some of the tenets associated with informal conflict resolution—every chief has the authority to set up a court in every local community. However, this does not make the system completely free from state control. In fact, the post-conflict justice reform process has succeeded in reinforcing administrative control through executive review of customary law matters. This is contrary to the experiment in Sierra

Leone which has developed a legal framework to transfer judicial authority from the executive arm of government to the judiciary in line with international rule of law standards.

Yet, the case of Grand Gedeh confirms that these national policy changes are shaped in fundamental ways by underlying institutional factors such as access to the formal justice system, the legitimacy of customary justice norms, and the authority of dispensers of primary justice. In order to meet international standards, the government of Liberia has embarked on efforts to

300

regulate the jurisdiction of chiefs’ courts and prohibit customary practices that violate individual human rights. The problem with such moves though is that they tend to create a justice vacuum in the absence of a credible and effective state system to take over conflict resolution roles, particularly in hard-to-reach communities. Moreover, it should be noted that customary mechanisms are popular in post-war Liberia not just because they prove functionally effective but also because they dispense the kind of justice that many Liberians consider legitimate. Both their procedural and normative norms tend to resonate with the ways Liberians define justice and their conflict resolution priorities in the developing post-war rural economy. Considering the training and orientation of the formal justice system personnel, it is highly unlikely that the justice needs of the majority rural inhabitants would be fully accommodated in such a system any time soon.

Apart from issues of institutional effectiveness and legitimate justice norms, this Grand Gedeh case has also raised questions of political authority and local power relations earlier examined in the Sierra Leone cases. Interaction between and across justice norms takes place in social and institutional environments but the dynamic and outcome of that interaction is a fundamental political question. Grand Gedeh demonstrated that beyond restricting access, regulating customary justice has real consequences for authority over local resources and the distribution of wealth in the post-war Liberian economy. The example of sassywood illustrated the dilemma of regulating customary conflict resolution in rural areas while land disputes illuminated circumstances under which local power dynamics may shape the relationship between formal and customary justice. These findings are consistent with experiences of customary justice in

Sierra Leone, both in provincial areas and the urban periphery of Freetown. All of these cases

301

have shown that customary justice systems are relatively more effective and legitimate mechanisms for resolving the majority of disputes confronting people in these post-war societies.

But the multiple ways these mechanisms interact with the state system suggests that political power is not only a target for justice reform but also a determinant force in addition to institutional and social factors. Institutions and norms of conflict resolution matter significantly in justice reform but not in isolation of the political economy of war-torn societies.

302

CHAPTER SEVEN Summary, Conclusions, and Recommendations

Proponents of liberal peacebuilding disagree as to the relationship between institutionalization and liberalization following the end of violent conflict, the contention being which of these two elements should come first (Paris et al. 2009; Paris 2011). But there is a reasonable consensus that building liberal-democratic institutions now or later represents the surest foundation for long-term political stability and economic development in war-torn societies. At the heart of this normative claim is the rule of law, a principle which requires institutions to operate according to international standards of good governance and human rights. This liberal-democratic approach has been extended to customary (traditional) mechanisms to ensure that their procedural and substantive norms meet the same global standards as those of formal institutions. Referring to the widely held perception in international circles that informal institutions are inimical to both governance and development, Hyden (2008) argues that “reform measures have been aimed at removing or at least reducing their influence on choice and behavior” (15).

Since the end of civil war in the early 2000s, Sierra Leone and Liberia have each implemented a liberal peacebuilding agenda which focuses almost exclusively on state capacity building to restore formal authority in their post-war societies. One of the central pillars in this agenda is the justice sector, and reform programs have been geared toward enhancing the institutional capacity of the judiciary and law enforcement agencies to ensure that they effectively perform core functions of the post-conflict state. In fact, both countries are often cited as “success stories” of the current UN peacebuilding model as they have been able to avoid a relapse into full-scale violent conflict for more than a decade. However, customary justice systems not only survived

303

the civil wars, but have also thrived post-conflict, according to numerous studies in both Sierra

Leone and Liberia (Alie 2012; CSAE 2009; PICOT 2009, 2014; Sawyer 2008; USIP 2009).

These studies align with a recent cross-national research across 19 African countries confirming that “traditional authorities have quite evidently thrived despite the fact that their very existence is seen as a challenge, if not an open threat, to liberal democracy” (Logan 2010, 1, also UN 2012;

UNDP 2006). Against this backdrop, the principal objective of this research has been to explore what makes customary justice systems resilient in post-conflict reconstruction and how they interact with modern state institutions. Apart from drawing attention to the unintended adverse consequences of a technocratic state-centric approach, the study has also focused on the set of conditions which make customary justice systems vital conflict resolution mechanisms in a post- conflict context. Situating the investigation within both countries’ political histories, the previous chapters have also grappled with the conundrum of whether or not customary institutions should be subject to rule of law standards. This concluding chapter summarizes the major findings, conclusions, and contentions of the study distilled from analysis of multiple data sources.

The chapter is divided into three major sections. The first provides a summary of the findings, demonstrating how the research questions in this study have been answered. The second section outlines the conclusions derived from analysis of evidence presented in the study. In particular, this section will underscore the circumstances under which the relationship between formal and informal justice systems tends to be either cooperative or conflictual. Finally, the third section presents the broader contributions and implications of this study by situating the research findings within the sub-fields of peacebuilding and African politics for the purposes of theory development and policy innovation in engaging informal institutions in Africa and beyond.

304

Major Findings about Justice Sector Reform

As an in-depth qualitative case study, this research revealed that justice sector reform takes place within a confluence of historical, socio-economic, and political forces which affect both the processes and outcomes of reform. Post-war reconstruction is typically a complex and context- contingent process but it is possible to discern a few factors which play a deterministic role for the purpose deriving a theoretically explanatory framework to enhance broader empirical understanding of reform in war-torn societies. Although this section summarises the separate findings of each of these 3 important factors—political power, institutional effectiveness, and social relevance—it must be noted that the overall analytical focus has been to examine how their interplay shapes primary justice at the sub-national level.

Politics of Justice Reform

Initially, this research demonstrated that the contemporary relevance of customary mechanisms relates in some important respects to the political history of institutions in sub-Saharan Africa.

However, instead of taking institutional stability for granted, a substantial portion of this study has been devoted to the historical and political processes through which customary justice systems have evolved, adapted, and reflected changing socio-cultural and economic realities— from colonial rule to post-war state reconstruction. The second half of the literature review

(Chapter 2) examined the Africanist literature on informal institutions while the background

Chapter 3 provided historical evidence of the development of legal pluralism in both countries.

The historical evidence indicated that the contemporary justice system is a product of pre- colonial governance systems in Africa and the influence of modernization and state-building projects following the establishment of settler colony in Liberia and a Crown colony in Sierra

305

Leone. Specifically, colonial indirect rule utilized certain traditional authorities as agents of imperial taxation, extraction, and regulation. As the cash economy expanded into the interior, certain customary norms assumed a commercial value for the benefit of indirect colonial agents, local economic elites, and the global capitalist class. Where customary justice institutions were recognized, the imperial objective was to use them to segregate the administration of local populations who were not entitled to the rights guaranteed by the English legal system.

Yet the extent to which this historical encounter transformed traditional rulers into perpetual

“decentralized despots” (Acemoglu et al. 2013; Mamdani 1996) remains debatable in the evidence assembled for this research. At the outset, the expansion of colonial rule into interior areas was met with significance resistance, culminating in the Hut Tax War in Sierra Leone and numerous settler-indigenous wars in neighboring Liberia. Although resistance movements were often quelled down by military conquests, those initial moments of defiance against the colonial state signaled the beginning of a complex state-society relations of domination and subversion.

For example, local chiefs who opposed the declaration of a British protectorate in Sierra Leone usually met in secret society bushes to plan attacks against the colonial Frontier Force because they could not legally assemble in public spaces for such a purpose. Those subversive spaces which were beyond the reach of a limited colonial state have evolved into an unofficial realm of social order today from which traditional authorities bargain with, constrain, and challenge those at the center as Boone (2003) has noted in her seminal work on Africa’s political topography.

Moreover, the historical experiences of Liberia and Sierra Leone have indicated that decolonization was not entirely a struggle between traditional and modern forces of political

306

development. While Americo-Liberians dominated national politics for more than a century, the modern state of Sierra Leone was bequeathed to protectorate elites instead of the Krios who were relatively more oriented toward western civilization (Abraham 1985; Barrows 1976; Cartwright

1970; Collier 1976; Kilson 1966; Wyse 1989). All immediate post-colonial governments were established by educated protectorate elites who favoured English law, but they needed a coalition with traditional authorities to challenge the minority ruling class of the Freetown colony (the capital region). With the introduction of partisan electoral politics, this coalition became an instrument for mobilizing popular support for elite at the center in exchange for state protection of traditional rulers. Yet, no successive government took this alignment of interests for granted.

As in Liberia (Harris 2012; Lawenkopf 1976; Levitt 2005; Sawyer 1992), each government adopted a particular mix of tribalism, patronage, cooptation, and coercion to maintain a local support base broad enough to keep the opposition at bay as long as possible. The 1963 Local

Court Act which created the position of court chairman in Sierra Leone also suggested that rewards from the central administration were not always guaranteed. The Act was the genesis of parallel authority structures in local chiefdoms and, since then, the politics of customary justice has been about who controls the principal regulatory organ of a chiefdom. In 1967, the National

Reformation Council abolished tribal courts and the application of customary law in the western area of Freetown. This question came to the fore again in the 2011 Local Court Act which chiefs have widely interpreted as the latest and most formidable attempt to erode the authority of chieftaincy in Sierra Leone.

That traditional authorities had been embroiled in the partisan patrimonial politics that predated civil war in both countries explains why they were targeted in the violence that ensued (Alie

307

2008; Fanthorpe 2005; Richards 2005). At the same time though and in line with decolonization politics, the historical evidence suggested that the battle line was not between traditional and revolutionary forces. Traditional authorities aligned with various warring factions including those who spearheaded civil defence forces in Sierra Leone and supported Liberia’s most modern warlord, Charles Taylor. When some elements of the Sierra Leone army became

“sobels” against the state, civil defence forces were responsible for providing security even for the elected Kabbah government in Freetown. Similarly, traditional authorities have been crucial in war-peace transition efforts. Whereas liberal peacebuilders saw the transitional period as an opportunity to radically transform local governance into modern institutions (Jackson 2007;

World Bank 2004), national governments were interested in restoring traditional institutions as symbol of state authority in peripheral areas.

As discussed mainly in Chapter 5 and 6, the return of electoral politics following the end of civil war reinstated traditional leaders’ historical bargaining leverage—the vote. Additionally, these authorities have remained critical to the post-war political economy, more so national economic recovery plans which are based entirely on efforts to revamp the extractive sector and attract foreign investment in agribusiness. Since the majority of land in both countries is governed by a communal land tenure system and under the custody of traditional authorities, their cooperation is required for the expansion of commercial interests into the interior areas. Increase in the demand for communal land has heightened the salience of land disputes which in turn increases the role of customary justice systems in the redistribution of local resources. Moreover, this research found that since colonial rule justice systems have evolved as an important source of

308

revenue both for public coffers and private income, especially for sub-national local authorities who have historically been poorly remunerated.

Taking this political history into consideration, a major finding of this study is that the stakes are high for all parties affected by the regulation of primary justice: central elites have vested interests in customary institutions that preserve access to local resources while traditional authorities are concerned about alteration in local power relations. Under these circumstances,

“the cost of penetrating customary institutions and overhauling the informal norms of governance are typically deemed too costly” (Hyden 2008, 16) and “any reforms are both legally and politically contentious and cannot simply be engineered but required political will and consensus” (Sriram 2011, 140). Jackson (2011) argues that “justice interventions alter local power structures and it is the politics arising from these structures that play an important role in the outcome of such reform” (208). Paying close attention to these politics of reform is consistent with historical institutionalism, particularly as it informs our quest to understand where institutions come from, why they operate in particular ways, and how they get entangled into prevailing power structures (Mahoney 2000; Pierson 2000). As Hyden (2008) asserts, this approach departs from the optimistic assumption that “institutions can be designed and reformed with little or no attention paid to underlying power dynamics” (3) and it takes seriously what

Hall and Taylor (1996) describes as the potential of institutions to alter power relations. Boone

(1998) has cautioned a long time ago that state formation in West Africa is shaped by historical power structures within rural societies as well as power relations between local and central elites.

309

Institutional Effectiveness

While the politics of reform tells us why customary institutions have survived various historical epochs in modern statebuilding, these political imperatives say very little about what makes these institutions legitimate and socially relevant in an era marked by increasing calls for institutional liberalization. This institutional dimension has been discerned in this dissertation by paying equal attention to the perceptions and experiences of those who use customary justice systems, often as their preferred forum of redress in war-torn societies. In both Sierra Leone and Liberia, the development of physical judicial capacity has been accompanied by a flurry of new legal and policy frameworks to enhance the effectiveness of institutions in the state justice system. These frameworks have been designed and implemented with substantial technical inputs from international experts deployed both by UN and bilateral donor agencies. Nevertheless, a crucial realization in this research was that rational institutional design needed to be assessed in terms of providing accessible, affordable, and credible justice to the local population of war-torn societies. Below is a summary of the findings on this element of justice reform which were drawn from analysis of data collected mainly through in-depth interviews in both countries.

The evidence presented in Chapter 4 confirmed that “simply establishing new legal rules may not suffice to ensure that functioning rule of law is experienced by the population” (Sriram 2011,

140). The chapter takes into consideration the long-term cost of (re)building a formal justice system in post-conflict states with poor physical infrastructure, rugged geographical terrain, and whose administration remains highly centralized. One of the findings is that aside from the overhead cost of building the requisite physical and administrative capacity to dispense justice nationwide, the recurrent expenses of keeping the system operational have not been adequately

310

addressed. The majority of legal professionals are based in capital cities and the few judicial officials deployed in provincial areas are often constrained by lack of logistical and funding support from administrative headquarters. These challenges are partly attributable to internal administrative conditions such as the reluctance of national governments to back justice reform strategy with the required funding commitment. Until recently, Sierra Leone’s funding support to the judiciary was less than 1% of the national budget, a situation that undermined an institution expected to function as an independent arm of government. Under such prevailing conditions, it was noted that (re)building the formal justice system would take a considerable period of time— more than technical peacebuilders anticipated.

But what is particularly revealing in this research is the finding that enhancing state capacity to provide justice did not necessarily increase public access. Instead, capacity building and access to justice have been inversely correlated in that efforts to capacitate the state system often impedes its ability to respond to the conflict resolution needs of the majority population. Justice sector reform has little impact on increasing access because reform programs are intended to make the pre-existing system functional rather than transforming the nature of justice it dispenses. Drawn from the Anglo-Saxon common law tradition, the judicial system in both countries is adversarial and successful civil litigation requires the service of a lawyer who can navigate its formal structures to obtain redress. Compounding this problem is the fact that legal training remains highly elitist and centralized with educational institutions still relying on legal curricula designed exclusively for the application of English law. Another significant finding therefore was that where advancement in capacity building has been evident, it benefited those who possess the wealth, education, and influence to use the state justice system to their

311

advantage. With the exception of few remedial measures such as ad hoc legal aid programs, justice sector reform has paid little attention to these structural and social injustices which create unequal access to the system.

As the chapters on state-constituted customary justice illustrated, another paradox was that efforts to standardize the operation of primary justice systems has the unintended consequence of undermining the features which make those systems effective conflict resolution mechanisms.

When they are brought under executive or judicial oversight, the administration of primary justice becomes centralized in administrative headquarters away from the local communities.

Formalization of the procedures through which local courts operate makes it harder for their rules of court to keep up with, and be responsive to, changing societal norms. These processes of standardization and centralization do not only increase the transaction cost of physical access, they also heighten the opportunity cost involved in seeking redress through the state system.

Often, these changes are proposed in the name of state’s international obligations to protect vulnerable and minority groups, but the net effect has been an alienation of people from conflict resolution mechanisms that are supposed to be locally owned. Throughout all the cases covered in this study, there is widespread perception that there is “no justice for the poor” not because courts or law enforcement agencies are completely unavailable or judges always rule against poor litigants, although perception of corruption remains rife. The problem is that the cost of using the system has become increasingly prohibitive for them, even after reform programs have been implemented. Koch (1979) alluded to this irony by arguing that “with increased bureaucratization and professionalization of the law, gaining access to justice has become cumbersome, protracted, and costly matter (quoted in Bennett 2012, 35). This paradox might be

312

true everywhere but this study found the cost of access unbearable for people living in war-torn countries that have consistently been ranked lowest in the UN Human Development Index.

Moreover, the situation has not been helped by the conventional approach adopted by donor partners, especially rule of law programmers who want to socially engineer change by injecting technical assistance into the system. Donors in both countries claim that their approach now is to support a national justice strategy designed by democratically elected governments as part of their long-term development agenda. This is in line with the 2005 Paris Declaration on ensuring country ownership in development assistance. But they all too often fell prey of primitive local politics. State actors are quick to fulfil the formal requirements needed to facilitate donor funding such as the ratification of international treaties, promulgation of new laws, and the creation of new institutions. Meanwhile, the structural conditions which have historically privileged those who are well connected to the mainstream political economy remains intact to ensure that they disproportionately benefit from capacity building. By simply restoring not transforming the post- conflict state, technical assistance did not decouple national objectives from the narrow interests of elites, political parties, and their close connections (Dyck 2013; Kandeh 2011) which in turn fueled public perception that state institutions are capacitated to benefit a certain class of people.

Donor agencies are also constrained by their organizational culture and standard operating systems, a phenomenon that has been explored in both bilateral and multilateral aid agencies

(Barnett & Finnemore 2004; Denny 2013). Using DFID as a case study, Denny (2013) contends that the bureaucratic culture and political commitment of donor agencies put them in an “iron cage of bondage” that restrict them from dealing with alternative sources of authority outside the

313

modern state system. Their organizational culture defines legal-rational authorities as the only legitimate recipient of donor assistance while accountability to the taxpayer back home makes it unacceptable to deal with institutions viewed as inhospitable to liberal-democratic values. In other words, these organizations are ideologically committed to the promotion of liberal values abroad and with time their standard bureaucratic practices coalesce into a culture that is reflected in their recruitment, funding, and accountability model. This model is suitable for implementing time-bound donor projects but it does allow international partners to deal with deep structural and social issues which have historically called into question the legitimacy of state institutions.

The failure of multi-million dollar projects to institutionalize the rule of law in domestic systems around the world is well documented (Carothers 2006; Davis & Trebilock 2008; Golub 2006;

Mani 1998; Tamanaha 2011). Similarly, this study’s central finding about donor programs was the slowness to recognize that building public confidence in, and accessibility to, the justice system is as critically important as enhancing the capacity of state institutions to deliver justice.

Combined, these findings about the impact of formal institution building call into question rational institutional design theory. Post-conflict statebuilding has largely been premised on this theory and it assumes that improving the technical and managerial capacity of institutions would change the incentive structure and bring about desired outcome (North 1993). Specifically, it is expected that “when changes in formal rules affect the relatively cost and benefits of playing by informal rules, they may have an important effect on the stability of informal institutions” by altering the nature of the problem and increasing the cost of using informal mechanisms (Helmke

& Levitsky 2006, 23). Rule of law programmers are particularly sympathetic to rational design which translates into technical institution building in justice sector reform. But the experiences of

314

Sierra Leone and Liberia, which have implemented reform programs for more than a decade, illustrated that institution building requires sustainable resource commitment and it takes a considerable period of time for new institutions to increase access to justice. This reconstruction experience also attested that rational design models do not change the nature of the problem that necessitated informal institutions especially where they pay little attention to issues of legitimacy and public trust which have historically confounded the modern statebuilding project in Africa.

Social Relevance

The findings summarized above explain why it is important to understand whether or not justice sector reform increases access to redress through the state justice system. In addition, the evidence assembled in this research brought to bear on institutional analysis questions regarding the social relevance of institutions, particularly in contexts where they seem relatively available and functional. In particular, it was noted that societies emerging from conflict define an institution as relevant based on its indispensability to their social structure and local economy.

For example, a rural or peri-urban community which depends on an informal economy is interested in the settlement of disputes emanating from underground businesses, sub-contract employment, and a host of other transactions outside official written contracts. In this context, property rights are undocumented and therefore disputes arising from ownership claims are difficult to adjudicate through a formal justice system. Furthermore, the social structure of such communities makes speedily resolution of dispute an imperative to forestall fracture of informal trust networks upon which the day-to-day shared livelihood usually depends. This is a serious consideration because the boundaries between private and public spaces in small peripheral communities are highly permeable to the extent that interpersonal conflict can easily affect wider

315

relations to solve collective action problems. Thus, quick resolution of disputes is vital not just for restoring trust between individuals but also for the continuation of group solidarity and collective welfare, a finding revealed by close interaction with local communities.

A corollary finding relates to the social cost of conflict resolution procedures. There is a concept of individual rights and entitlements and people seek redress in civil matters with the intention of winning a case at the expense of the opponents in these war-torn societies. At the same time, there is always a concern that the process of justice should not inflict undue hardship on the parties in a manner that makes it harder for them to reconcile afterwards. Across all the cases in this study, people seemed mindful not to seek redress for minor disputes through mechanisms that would have negative externalities such as extra financial burden, loss of reputation, and breakage in informal trust networks. People want redress to specific offences but they want to do so through a conflict management system that operates in a socially cost-effective way. These social costs vary from one system of justice to another depending on the methods they employ as well as the sanctions they are likely to impose. Interview and observation evidence suggested that there were different social cost implications of a formal system that relies heavily on coercion compared to other mechanisms that seek compliance through moral persuasion or ostracism from the wider community. Although these negative social externalities were extraneous to the substance of a particular dispute, this study indicated that they count in disputants’ estimation of whether a certain mode of redress is socially appropriate to use for the offence in question. Importantly, it was underscored that concerns over the social harm of justice systems are linked more to the vagaries of an informal economy and shared communal space than parochial kinship ties. These findings about complex social relationships further challenge

316

rational-choice assumptions that define individuals as strategic actors with fixed preferences, interested in rational calculation to maximize gain (Hall & Taylor 1996).

Overall though, this bifurcation does not mean that justice systems are diametrically different with nothing in common. For example, the cases covered in this dissertation demonstrated that although the informal justice system is not based on written and determinative legal rules, it is infused with social norms and processes of acceptable behavior. Similarly, legal rules are not always conclusive as judges may consider social purposes or consequences when interpreting the rule (Tamanaha 2015). Thus, these systems should be regarded as different points on a justice continuum depending on their social relevance. Such an understanding is congruent with this study’s overall theoretical interest which is to use alternative explanations to understand the strategic interaction between formal and informal justice systems in post-conflict peacebuilding.

Instead of ruling out one competing explanation in favor of another, the preceding chapters have been preoccupied with the task of elucidating the dynamic of institutional interaction, paying concurrent attention to politics of justice reform, performance legitimacy, and social relevance.

O’Donnell (2006) is among the first institutionalists to call for this type of analysis when he noted that the strategic shifts between formal and informal institutions are the “stuff of politics which tell us why and how certain actors adapt, skillfully and recurrently, to codes embodying various sets of rules” (287). The next section integrates these findings to generate major conclusions about formal and informal justice interaction within the context of post-war liberal peacebuilding in order to link this study to the broader literature on informal institutions.

317

Conclusions about Formal and Informal Justice Interaction

Using a sub-national analysis of primary justice, this study concluded that there are four distinct ways through formal and informal justice systems interact in post-conflict reconstruction: competitive, substitutive, accommodative, and complementary.230 Customary justice systems engage in competing interaction when their activities are subversive in terms of undermining the authority and jurisdiction of the formal justice system. They directly subvert formal rules when traditional authorities adjudicate without legal authority, go beyond their jurisdiction, and employ various traditional methods that contravene international human rights laws and the national constitutions of both countries. In provincial areas, unofficial customary courts deprive the state-constituted system from hearing cases, which in turn undermines the state’s ability to collect revenue from court fees as is illustrated by the tension between official local courts and unofficial Kangaroo courts in rural Sierra Leone. When land disputes and other major matters are diverted from the legally-constituted system, it limits the exercise of formal authority over the distribution of local resources and regulation of local populations according to the rule of law.

This competitive institutional relationship is generated and sustained by the following interplay of the three explanatory mechanisms outlined above. Firstly, the post-conflict state demonstrates that it lacks the capacity to make justice affordable, accessible, and credible nationwide.

Focusing on indigenous groups in Latin America, Van Cott (2006) argues that social exclusion may lead these groups to maintain or (re)create alternative informal institutions at the margins of the state legal system. Unlike the ethnic or racial barriers facing indigenous populations, the

230 This analytical framework is an adaption of Helmke and Levitsky’s (2006) theoretical model based on case studies of informal institutions in Latin America.

318

nature of the problem for countries emerging from civil wars is endemic socioeconomic disparity reinforced by post-war neoliberal policies that pay little attention to economic maldistribution.

Secondly, there is a problem of social relevance as the institutions being built are based on formal models imported from the West instead of evolving locally. Dia (1996) cautions against this mismatch when he contended that “formal institutions are at odds with societal behavior, expectations, and incentive systems and therefore face a crisis of legitimacy and enforcement”

(7). These institutions may have what Jackson and Rosberg (1982) call “juridical statehood” but they do not align with the conflict resolution priorities of the majority population.

The interplay of these two factors can produce a competitive institutional relationship or lead to substitutive interactions. What distinguishes these two possible outcomes is elite interest, the third factor mediating between justice institutions and social norms. It is true that “the absence of effective formal rules and laws allows for the survival of indigenous institutions as well as the emergence and persistence of particularistic norms” (Helmke & Levitsky, 260). But what determines whether the relationship would be either subversive or substitutive is power politics.

When formal regulation of primary justice threatens to alter local power relations by introducing parallel authority structures and reducing the influence of dominant actors, the motive for operating informal institutions is fundamentally to subvert the intention and letter of the formal rule. Subversive institutions often operate with tacit central state endorsement but this strategy depends on how powerful status-quo local elites are as well as the extent to which state actors depend on their cooperation to stay in power or implement state policies at the local sub-national level. When elite interest is served, both formal and informal institutions are undermined for particularistic benefits—political power and primitive resource accumulation. This corrosive

319

effect of neo-patrimonialism has been the central focus of Africanist literature on institutions for more than half a century now (Bayart 2009; Bratton and Van de Walle 1997; Chabal and Daloz

1999; Clapham 1985).

Although a substitutive relationship equally contravenes formal rule of law, this study concludes that the difference though in this dynamic is that elite interest does not determine the operation or relevance of informal institutions. Instead, they operate with the sole purpose of augmenting formal efforts to increase access to justice by dealing with cases which the state justice system is either unable or incapable to handle satisfactorily. These cases range from matters arising from customary law to issues generated by an informal economy which cannot be accommodated by the formal justice system. Such a conclusion resonates with studies which have documented the role of informal institutions in providing localized public services in sub-Saharan Africa where pervasive state weakness inhibits the ability of central governments to provide public goods nationwide (Brautigam 1997; Hyden 2002, 2008; Meagher 1995, 2010; Medani 2011; Roitman

2005). In terms of conflict resolution in particular, unofficial customary systems are substitutive when they operate in the interest of people who cannot afford the financial and social costs of civil litigation through the formal state system. Operating in a substitutive mode also means that the customary justice system is used purely as a social mechanism aimed at voluntary settlement rather than a coercive tool subject to the particularistic interests of local elites.

Substitutive interaction also occurs when judicial officials allow out-of-court settlement often by default of low state capacity but also through request by the parties in question. Under these circumstances, state actors are complicit about the operation of informal institutions not because

320

of reciprocal patrimonial relations but because elimination of such mechanisms would cause a justice and security vacuum that may in turn undermine the fragile stability of state institutions.

Disassociating this vital social incentive from narrow elite interest is a difficult task as local strongmen may appropriate tradition and customs to disguise their narrow material motives.

However, this is where a mixed method approach that combines direct observation of primary justice systems with in-depth interviews with those who use these systems became extremely crucial in this dissertation. Making this critical distinction between particularistic interest and relevant societal objectives, the conclusion was reached that customary institutions are not intrinsically or entirely inimical to statebuilding. When elite interest recedes to the background, these institutions assist weak state institutions to increase access to justice in what Helmke and

Levitsky (2006) have described as a convergence of purpose.

Conversely, it was concluded that accommodating interactions operate in an institutional context where the formal justice system is concentrated and the application of formal English law seems dominant. Within this context, violation of the national constitution or human rights law is likely to be exposed and the possibility of illegal mechanisms being overruled by the state justice systems seems fairly obvious. Here, proximity to the central state system and availability of information means that traditional authorities may have to alter their institutions to avoid punishment or adjust to changing rights awareness. Although state institutions still have legitimacy issues, their mere density means that traditional authorities are at a higher risk of being challenged and the increasing presence of human rights activism puts informal institutions under intense public scrutiny. This is similar to the impact that formal institutions have on indigenous justice systems in Latin American when narrowing the state’s geographic and cultural

321

distance ends up subjecting indigenous institutions to “the regulatory reach of a centrally controlled and normatively distinct legal system” (Van Cott 2006, 266).

In this circumscribed environment, the major conclusion is that the relationship between formal and informal justice becomes accommodative through strategic power relations. If local elite interest is threatened, traditional authorities tend to adjust the operation of customary justice system to incorporate modern methods such as the recording of statement by tribal heads in

Freetown and the use of local traditional norms to promote liberal human rights values. In the same vein, local elites use the state justice system to obtain formal backing. Examples of this include the use of state-constituted courts to enforce administrative adjudication in Liberia, chiefs in rural Sierra Leone using the local courts to enforce informal kassi fines, and tribal heads requesting police officers to arrest individuals who refuse to appear in their illicit courts. Such strategic interaction is reminiscence of “adaptive institutions” in strong socialist states like China where the availability of a strong state system means informal actors have to devise creative response to a formal environment they find too constraining (Tsia 2006). Noting that

“institutions endure when they depend on certain social relationships for their reproduction,”

Lund (2006) also affirms that “this does not mean that nothing is happening to them” (698).

Since state institutions are strong but not effective in this context; the best way of circumventing them is to cultivate mutual informal relations wherein local elites accommodate formal rules in exchange for their own protection. But as with competitive informal institutions, when the motive for accommodating the state system is particularistic, the interaction ends up undermining the viability of both formal and informal institutions. As traditional authorities rely

322

on strong state institutions to enforce decisions, they undermine the legitimacy of customary justice systems which are expected to operate as social mechanisms.

For complementary institutional interaction, the central conclusion is that the formal justice system must be operating effectively, deemed to be socially relevant, and local elites do not feel threatened by reconstruction. In justice reform, it was concluded that informal customary systems take up a complementary role when the public perceives state institutions as capable of delivering credible justice to everyone, irrespective of your socioeconomic status in society.

When accessibility and public trust in the state-constituted system is enhanced, it creates an incentive for people to take their matters to formal institutions instead of using unofficial conflict resolution mechanisms. An effective state system does not only make it harder to bypass the formal rules, it also increases the cost of operating informal mechanisms by undercutting the number of cases brought to those forums. For instance, the general expectation in Sierra Leone and Liberia that “blood” or “police” cases which violate state law are meant for the criminal justice system seems higher in urban areas where the state system is perceived as relatively functional.

However, the institutional environment created by an effective formal justice system does not automatically or straightforwardly produce a complementary outcome. This is why Helmke and

Levitsky caution that the ability of a formal system to serve as catalyst for institutional change should not be overstated as informal institutions can be resilient even in the face of large-scale legal or administrative reform. They also argue that complementary informal institutions are available only in developed countries with relatively stable and effective formal institutions.

323

According to this study, the major problem is that formal institutions still lack social relevance, even those considered to be relatively functional. “Functioning formal institutions do not operate in a [social] vacuum; rather, they tend to be embedded in shared norms and expectations that facilitate or encourage compliance with them” (Helmke & Levitsky 2006; 280). Stokes (2006) makes a similar conclusion in Argentina where “public expectations of accountability were the informal rules that helped support local democracy” (139) in the same way that the stability of presidential democracy in the US is often attributed to long-standing social norms of civic engagement (de Tocqville 1840). “In the absence of such underlying norms, even systematically enforced institutions may not work” (Helmke & Levitsky 2006, 208). The problem in sub-

Saharan Africa has been compounded by the fact that formal institution building historically took place in the presence of pre-colonial structures. This means that customary justice systems are not entirely endogenous to the modern state: weak state institutions create the institutional environment for these informal norms to thrive but did not cause them to emerge as they predated the modern statebuilding projects. If customary institutions did not originate through the workings of formal rules, they would hardly disappear even where these rules are effectively enforced (Helmke & Levitsky 2006; O’Donnell 2006).

That traditional authority is rooted in pre-colonial norms means effective formal rules can only constrain not eliminate customary institutions, this study concluded. Under such circumstances, the only plausible complementary interaction occurs when customary justice institutions operate separately from the formal state system rather than having identical procedural and substantive norms. In other words, the state institutions coercively handle major offences while their informal counterparts operate as a social mechanism to deal with minor cases in a socially

324

relevant manner. Making reference to this complementary relationship, Bennett (2012) claims that whereas the threat of coercion requires due process in the criminal justice system, strict adherence to formal rules is not necessary in customary courts whose proceedings are based on consent and favor non-punitive action. When customary justice institutions operate solely as social mechanisms, their predatory particularistic tendencies are minimized and this provides the basis for certain matters to be transferred to the formal system. Chapters 5 and 6 demonstrate that

“blood cases” from peripheral communities that reach the state justice system do so only with the permission of traditional authorities and when the offense is regarded as a serious violation beyond local customary law. This conclusion challenges the conventional view that legal dualism is an irredeemably negative development in Africa (Ekeh 1975; Mamdani 1996), but such complementary interaction is analogous to what Lund (2006) calls “alternative sites of authority that deny any notion of unity and rationality in the singular” (689).

In summary, the findings and conclusions reported indicate that primary justice systems interact in complex ways that are both mutually reinforcing and undermining, depending on the particular intersection of institutions, norms, and power in the local sub-national context. In either cooperative or conflictual interaction, it matters whether the state justice system is able to deliver accessible, affordable, and credible justice to local populations and whether justice norms are in line with people’s conflict resolution needs as well as their conception of justice. Yet, such interaction between justice institutions and norms is mediated by underlying power dynamics relating to local political authority and access to local resources. Given the fact that institution building takes considerable time and the modern state system still lacks social relevance, substitutive and complementary interactions offer the most feasible option for post-war

325

reconstruction. Customary institutions that operate in this mode do not only ameliorate a justice vacuum in post-conflict societies but also maintain social order in ways that contribute to long- term post-conflict peacebuilding.

Wider Implications and Recommendations of this Study

Keeping in mind that this research is a case study of post-conflict peacebuilding in West Africa, it is worthwhile to consider the meanings of these findings and conclusions in a larger perspective. In particular, what lessons emanate from this analysis of informal institutions at a time when development scholars and practitioners are beginning to embrace the reality that these institutions are resilient in the face of current liberalization and democratization processes? How does this African experience enrich conceptual development of a topic that has largely been dominated by studies of democratic transition in Latin America? With the exception of few analyses about social capital in the informal economy, the concept of neopatrimonialism has focused almost exclusively on the subversive and particularistic informal institutions in Africa.

Even recent governance reform analyses like the “drivers of change” thesis conclude that informal institutions and culture in Africa are inert and formidable obstacle to good governance

(Brown et al. 2006). What contributions can be derived from this study of customary justice to enhance a more nuanced and empirically-informed understating of informal institutions in

African and beyond? In the field of peacebuilding, there is increasing discussion about engaging non-state actors in security and public service provision. How does engagement with customary justice systems help to expand and deepen this debate? Inspired by these questions, the purpose of this final section is to identify the implications of this study as they relate to peacebuilding research, policy, and practice.

326

Conceptual Development

The literature review in Chapter 2 underscored the paucity of research on informal institutions in the field of peacebuilding due to the state-centric nature of its dominant scholarship. Studies in comparative politics have made significant advancement in exploring this topic focusing on the social capital of informal institutions (MacLean 2010; Meagher 1995; Medani 2011) and their interaction with the formal political economy (Roitman 2005; Tsai 2006). But disconnect between these two fields of study has led to conceptual confusion and neglect of some aspects of informal institutions in post-conflict reconstruction. Comparativists have devoted considerable attention to conceptual clarity but they too have largely neglected aspects related to the rule of law and scholarship in this area has evolved mainly from experiences of democratization in Latin

America (Helmke & Levitsky 2006; O’Donnell 1993, 2006; Van Cott 2006).

Conceptually, the preceding chapters make a clear distinction between official and unofficial customary justice based on whether the system relies on a social mechanism or state coercion for the enforcement of its decision. Although the distinction is not fixed, the empirical analysis also notes that the differentiation depends on whether institutional authority relies heavily on social persuasion or formal coercion. This conceptual clarity is important as it situates this study within the widely accepted definition of informal institutions including the expectation that such rules should emerge and be communicated and enforced outside the official state realm (Helmke &

Levitsky 2006). In so doing, the study also responds to O’Donnell’s (2006) reservation about whether indigenous institutions in Latin America should be regarded as informal. His contention is that “these indigenous legal systems and institutions are quite formally effected, having publicly appointed and legitimized authorities, detailed procedures, elaborate rituals, and

327

regularized sanctions” (289). For him, this means that Latin American indigenous institutions are public knowledge beyond their relevant context of interaction.

Apart from affirming that there is a gray zone between formal and informal institutions, this dissertation has underlined the analytical utility of distinguishing between official and unofficial informal institutions. Drawing attention to such distinction paved the way for another level of comparative institutional analysis. Insights particularly from Chapter 5 suggest that in addition to vertical state-society relations, the politics of customary justice in Africa are mostly played out in horizontal relationships between parallel local authority structures—the state-constituted system and a host of unofficial mechanisms. The state-constituted customary system includes formalized institutions akin to those described by O’Donnell while unofficial mechanisms are informal institutions without legal connection to the state system. Analysis of horizontal relations between parallel institutions is possible where statebuilding involves reconstitution of customary authority as agent of formal rule and this is a legacy of colonial indirect rule in Africa, unlike the historical experiences of indigenous institutions in Latin America. The recent literature on decentralization in Africa has begun elucidating the relationship between modern elected local councils and the institution of chieftaincy, focusing on overlapping roles in the areas of revenue generation, local development, and political authority (Lund 2006; Manning 2009; Mbawa 2014; Williams 2004).

These interactions are often based on “informal rules of shared responsibilities” and exploring them has become critically important for understanding institution building in post-colonial

Africa (Manning (2009). When pre-existing structures prove resilient in the face of modern statebuilding, analysis of local governance must focus on the circumstances under which parallel institutions interact to produce positive outcomes.

328

Recently, a small group of Africanists have coined the concept “developmental patrimonialism” to refer to contexts where rent-seeking is organized and monitored by a central political elite with long-time horizon to direct substantial portions of rent-earnings to transforming productive sectors for long-term benefits (Booth 2011; Kelsall 2011). Drawing parallels from Southeast

Asia countries that have achieved economic growth amidst patrimonialism, these authors argue that a patrimonial system per se may not be inimical to development but rather the specific forms that the creation, utilization, and distribution of economic rents take (Kelsall & Booth 2010).

(3). Developmental patrimonialism is also derived from the notion of “working with the grain” of Africa which stresses “local problem-solving approaches that build on relevant components of available cultural repertoire, whether in the form of extant beliefs systems or in the form of recognized behavioral templates (Booth 2011, 7). This scholarship was in its embryonic stage at the time of this research but their research agenda suggested that, as usual, attention would be devoted largely to the particularistic norms of neopatrimonialism (such as corruption, patronage, and clientelism) at the expense of other informal institutions like customary justice systems which operate as a social mechanism to complement state efforts to increase access to justice.

This study will potentially contribute to this critical conceptual development process.

Policy Improvement

One policy implication of this study relates to engagement with customary institutions in post- conflict peacebuilding. Policy changes in this area can be subsumed into three loosely interrelated approaches: (i) marginalization of unofficial customary systems until they wither away; (ii) building state institutional capacity to replace them; and (iii) engaging those constituted by the state to ensure that they conform to international rule of law standards. This

329

research noted that these policies are not only unrealistic but have also missed an opportunity to develop vital conflict resolution mechanisms in war-torn societies. Policies that caricature informal institutions as inherently inimical to post-war reconstruction should be revisited if the goal of institution building is to ensure that institutions are functionally and socially relevant to the needs of societies emerging from civil conflict. Legal and policy frameworks should also be flexible enough to accommodate pre-existing institutions which, although inconsistent with legal-rational authority, deliver the same public services for which new state institutions were being erected. Embedding these frameworks in the political history of African institutions would also enable post-war reconstruction to work with legitimate societal structures rather than attempting to replace them. Taking such historical background into account would ultimately guide against policy formulation that assumes all informal institutions to be ephemeral development arising out of post-colonial predatory governance and recent state failure in Africa.

Equally, policy guidelines regarding engagement with non-state actors have focused almost entirely on how to make them respect global governance and human rights norms. This liberal- democratic approach has made significant advancement in raising awareness on human rights, legal empowerment of vulnerable groups, and public scrutiny of customary institutions. Legal reforms particularly in Sierra Leone have aimed at separating judicial functions from the administrative authority of local chiefs and subjecting the decisions of customary court to formal review. Although these policy changes could potentially address the particularistic and discriminatory tendencies in customary systems, little attention is paid to the cost of state regulation of institutions that should be owned and administered by local community structures.

As a consequence, most of these regulatory measures have ended up centralizing control of

330

informal institutions and formalizing their procedural norms often to the advantage of state elites.

These state-centric policies have in turn reinforced parallel authority structures with overlapping interests, functions, and power. Instead of privileging state-constituted institutions, policy innovation must focus on downward accountability of pre-existing structures to ensure that the infusion of global norms does not derail local legitimacy (Bamfo 2000; Logan 2010). It may sound counterintuitive to the statebuilding project, but it is better to minimize formal control of customary justice because the state-constituted systems simply fall prey to local elite capture.

Local courts became a source local power struggle after colonial administrations transformed them into agents of state coercion and extraction.

In addition, accommodating informal institutions requires policy formulation to seriously consider the justice needs, priorities, and interests of local populations who lack confidence in the state justice system. It should not be assumed that public trust would eventually follow once the state system has been reinstated and the goal of institution building should not just be fulfilment of international standards, notwithstanding the importance of such a goal. Alongside meeting global standards, equal attention must be given to how post-war societies define justice and their pressing conflict resolution needs. And formulating policy this way implies moving beyond the assumption that global norms are universally shared to ensuring meaningful local consultations in which relevant policies are validated by communities to be affected by proposed changes. This is not to suggest that the state justice system does not deserve attention. Major crimes can only be addressed by the criminal justice system and disputes involving breach of formal contract are better handled through due process. The point is that state institutions are by

331

their very nature ill-suited to deal with the majority of disputes emerging from periphery communities and the informal economy in war-torn societies.

These concerns are not about tweaking the liberal peacebuilding strategy to build state institutions before liberalization or vice versa. They are directed at the core of this reconstruction agenda including its fundamental institutional assumptions. Building institutions without interrogating whose interests they serve does very little to tackle structural injustices which have historically eroded public trust in the state system. Centralizing customary justice into a state system which is grappling with its own capacity and credibility deficits does not only create a justice vacuum at the sub-national level but also compromises the features which make customary mechanisms vital to post-conflict peacebuilding. You cannot eliminate informal institutions that are not entirely endogenous to the modern statebuilding project, no matter how effective the state system becomes. At the same time, the predatory tendencies which customary systems assumed since colonial rule must be confronted. Such issues can be sustainably addressed only through a strong policy shift in which reconstruction incorporates local conceptions of justice and puts war-torn societies and their accountability structures at the center of policy development.

Rule of Law Programming

Although this study cannot claim broad external validity, the following discussion will attempt to generate some lessons that are applicable to peacebuilding practitioners generally. Considering the influential role of external actors in contemporary peacebuilding, these recommendations will be targeted at donor agencies involved particularly in rule of law programming in war-torn

332

societies. Firstly, rule of law programmers should eschew top-down engagement with customary justice norms to allow fuller incorporation of these practices into the peacebuilding agenda. This recommendation is not about romanticizing customary law as flawless, harmonious, and restorative justice mechanisms. It is about a bottom-up approach that focuses on how to make customary justice practices more meaningful and relevant to the justice needs and priorities of local communities. Rather than a predefined rule of law agenda that takes as its starting point demonization of customary norms and practices, the approach should be an open-minded engagement to explore locally relevant ways of adapting and reforming those institutions. For instance, customary justice systems are locally accountable when they operate as social mechanisms outside state coercion because their authority is then derived from community participation, societal norms, and the reputation of respected members of the community.

Secondly, rule of law programmers must be aware that “reforms are both legally and politically contentious, and cannot simply be engineered but requires political will and consensus” (Sriram

2011, 140). Aside from reproducing patterns of privilege and power about which people may have long-standing grievances, rule of law interventions create new sites for political contestation. Ignoring the concerns of local stakeholders whose interests and power are being threatened by institutional restructuring is inexpedient because reform can only be sustained if those actors are invested in the process. Thirdly, it is high time to abandon reductionist narratives that reduce customary institutions to primitive cultural practices that are completely antithetical to the modern political economy. Instead, it should be recognized that customary systems have evolved into contemporary institutions that often operate on a common sense logic in tandem with existing socioeconomic realities. For state institutions to effectively tackle crime and

333

maintain law and order in local communities, the cooperation of traditional authorities remains highly important. Similarly, customary structures have become crucial to post-war economic recovery programs by resolving disputes associated with the informal economy. This complexity has to be appreciated not only to increase access to justice for those who cannot afford formal redress but also to uphold positive institutional interaction in the interest of long-term peacebuilding.

Finally, rule of law programmers should come to terms with the reality that they are not neutral and innocent interveners—interventions can be harmful. Formalizing the application of customary law may be consistent with rule of law principles, such as due process and certainty in decision-making. But at the same time, such standardized procedures erode informal features

(such as reliance on social pressure, informal network ties, and community-oriented resolution processes), which are often the cornerstone of customary justice. In addition to critical self- reflection of the normative assumptions that underlie so-called best practices, practitioners must be aware of their own institutional constraints that inhibit constructive engagement with certain types of legal and political orders. Programmers should be cognisant that commitment to a legal- rational bureaucratic order “serves some social purpose or set of cultural values, even when they are shrouded in myths of impartiality and value-free technocracy” (Denny 2013, 16). Consistent with previous suggestions, this critical self-reflection implies that engagement with customary systems must be regarded as a delicate socio-political process beyond the expertise of technical- minded legal professionals. Engagement in this context is delicate because, unlike the state system, informal customary institutions are not merely particularistic traits emanating from state failure; they also serve a legitimate social purpose. Clearly, technical rule of law programming is

334

unfit to grapple with, and worse still to handle, this complicated task not just because its blunt tools are insensitive to questions of social relevance but also because fundamental rule of law assumptions are at odds with the procedural and substantive norms of customary justice.

Future Research

This dissertation has consistently contended that rule of law programming is ill-suited to engage customary justice systems in post-conflict peacebuilding. Theoretically, the study demonstrated that customary conflict resolution is largely rooted in social norms which are outside and predate the modern statebuilding project, introduced during colonial rule, and reinforced in the post- conflict reconstruction. Consequently, state capacity building can only constrain not eliminate informal justice institutions. At the practical level, the findings made amply clear that formal regulation of customary justice produces negative unintended consequences such as reinforcing unofficial parallel mechanisms and more importantly reducing access to justice at the subnational societal level. By raising these theoretical and empirical arguments, this research contributes to the critical peacebuilding literature which draw attention to the justice vacuum created by technical state-centric approach to customary justice (Harper 2011; Isser et al. 2009,

2011; Kotter et al. 2015).

Although this scholarship has extensively analysed the impact of rule of law programming, research is needed to explore plausible alternatives to rule of law engagement. This study has identified the set of circumstances under which customary mechanisms can be both subversive and complementary in post-conflict peacebuilding. However, the cases examined are too few and too typical of an externally-driven peacebuilding agenda to allow for greater generalizability to

335

other war-torn contexts outside sub-Saharan Africa. The cases examined here are undergoing peacebuilding and democratization concurrently but only large scale cross national studies could disaggregate the causal impact of multiple structural institutional environments. Small-N case studies lay the foundation for fine-grained hypotheses to be generated from qualitative analysis of institutional interaction to be tested in a larger sample of war-torn societies. The timing is ripe for such a quantitative study because over the past decade the number of countries in post-war reconstruction has risen exponentially.231

A particularly promising line of inquiry will be quantitative analysis of the specific causal variables that produce complementary institutional outcomes in post-conflict peacebuilding.

Such studies are rare in the developing world because state institutions are generally considered ineffective in contrast to developed countries. Yet, that state institutions are weak does not mean that customary norms would always substitute or undermine them. To be of value, empirical and theoretical work on informal justice systems must be sensitive to multiple institutional contexts, based on issues of social relevance, procedural norms, and relationship with the state coercive apparatus. The effectiveness of state institutions should also be defined in relative terms and this is why cross-national research should be augmented by sub-national analysis. Thus, the most appropriate recommendation for the researcher is to adopt an eclectic approach in which cross- national comparison explains systemic factors, while within-case analysis is more suitable to explore internal variation such as regional dynamics between rural and urban contexts.

231 There are a few reliable datasets on conflict termination and war to peace transition including the Uppsala Conflict Data Program (UCDP), the Transitional Justice Data Base Project at Wisconsin University, and the Penal Reform International (PRI).

336

To enhance the external validity of case study findings, future cross-national research must also focus on variation in colonial experiences and levels of post-conflict statebuilding. For instance, while British indirect rule created institutional context for parallel local governance structures, the French policy of assimilation and white settler colonies may have different institutional outcomes. Colonial legacies on legal pluralism also vary depending on whether colonies adopted the Anglo-Saxon Common Law or the French Civil Law traditions. Post-colonial countries also differ on whether they were administered by British indirect rule or through the French policy of assimilation or a combination of both. To further ascertain whether customary justice norms can complement state institutions, war-torn countries can be contrasted with those which have experienced relatively effective statebuilding since colonial rule. Such analysis can be extended to white settler societies as well as countries that underwent a different form of colonialism.

As more attention is devoted to customary institutions, the overall research agenda must aim at establishing a comprehensive database of these institutions, their actors, functions, and modes of interaction with formal state systems. At the moment, scholarship on this topic is divided among global governance researchers, area specialists, legal experts, and anthropologists with very little interdisciplinary dialogue to measure progress in a cumulative manner. Transitional justice experts have begun to include customary justice systems as an additional mechanism to foster restorative justice and reconciliation after a period of violent conflict or repressive regime.

However, it is important to underscore that some customary systems are not transitional justice mechanisms per se as their origin predated both colonial rule and post-colonial statebuilding and they have survived post-war reconstruction. Unlike other mechanisms (e.g., truth commissions and war-crime tribunals) that are temporal creation with specific mandates to address transitional

337

justice issues, customary institutions only adapt to the nature of crimes committed to become contemporarily relevant. Instead of regarding these institutions as part of transitional justice methods, future research should focus on how transitional justice shapes the contemporary evolvement and relevance of customary conflict resolution. Exploring the impact of state-centric justice systems on local Gacaca courts in post-genocide Rwanda as well as the unintended consequences of an externally-driven transitional justice on customary systems in Sierra Leone are among recent studies in this direction (Sesay 2015; Waldorf 2005).

In concluding, it is crucial to reiterate some conflations in terminology which need to be avoided when conducting research on customary justice systems, according to the Penal Reform

International (PRI 2000). The analytical distinction between official and unofficial customary justice has been made clear in this study. Importantly, researchers should always bear in mind that traditional systems are not necessarily informal institutions and not all informal institutions are traditional systems. For example, informal justice systems such as popular justice and alternative dispute resolution (ADR) forums may exist in transitional societies but these are not traditional systems because they are transitory and not rooted in pre-colonial justice norms.

Although traditional-style courts may have some trappings of customary norms, they are formalized systems because their administration and supervision is centralized in the formal state system. When dispute is settled outside the official state system, traditional conflict resolution becomes both informal and non-state (PRI 2000). These are subtle but important differences that should inform and be clarified by future research to advance comparative institutional analysis.

338

And finally, war-torn societies need all the support and assistance they can receive to facilitate post-war reconstruction and recovery. But such interventions require peacebuilders to fully understand the dynamics of internal agencies and actors to be effective, relevant, and sustainable.

Assessing the impact of peacebuilding interventions must go beyond the veneer of new institutions and new laws to interrogating the extent to which deep rooted structural issues have been tackled to create equal access to socio-economic and political resources of the emerging post-conflict polity. It was Kurz (2010) who recommended that institutional reform be reconceptualised into informal institutional reform in order to focus on the “drivers of change” outside the formal state system. As peacebuilding researchers and practitioners heed this recommendation, this dissertation has used customary justice systems to call for a deeper understanding of informal institutions that appreciates their legitimate social purpose while confronting those predatory and particularistic tendencies that were taken up post-colonially.

339

Appendix 1: Consent Form

Student researcher: Mohamed Sesay Department of Political Science McGill University 855 Sherbrooke Street West Montréal, QC H3A 2T7 CANADA Mobile: (515) 946-3789 Email: [email protected]

Faculty Supervisor: Prof. Rex Brynen Department of Political Science McGill University 855 Sherbrooke Street West Montréal, QC H3A 2T7 CANADA Phone: +1 514 398-4400 ext. 00634 Email: [email protected]

The purpose of this research

My study focuses on changes to improve access and quality of justice in Sierra Leone and Liberia following civil wars in both countries. The purposes are:

 To find out how new policies and regulations introduced by government are working out;  To identify people involved in these reforms and explore their decisions and actions;  To understand how changes affect local communities and their ways of settling disputes;  To determine if any former local practices are still in existence after the war, and how these practices may have changed over time;  To identify how government regulations may influence local traditional justice practices and the people involved.

I am inviting you to participate in this study by sharing your experiences with these issues in an interview. This would be conducted in a location you are comfortable with (e.g., your office, home, or informal meeting place) and will last about one hour and a half. If for some reason, it takes longer we’ll stop and decide together whether to continue, to take a short break, or continue at a later time. There are eight questions, but I may ask follow-up questions to clarify some of what you say. If you have no objection, the interview will be audio-taped to allow me to correctly transcribe your responses afterwards.

Apart from sacrificing your time, this interview will not cause you harm. In order not to put your job at risk, permission from your employer to grant this interview has been sought. This interview will not affect your job in any way, and your responses will not be disclosed to your superiors. There is the option for your responses to be anonymous (you will not be identified) and no other person will be present during the interview. I have taken measures to keep the data I collect in this interview securely in a locker at my university and to make sure that no one has

340

access to confidential information. In addition, identifiable data files/folders on my personal computer will be password protected. There are no right or wrong answers to the questions. I am interested in your experiences and knowledge.

This research and interview does not have any immediate benefit to you as a participant. But I will share the findings so others can understand justice reform in your community. The information I gather will be presented as a dissertation (an academic report), conference papers, and journal articles.

Informed consent

It is a requirement of the Research Ethics Board of my university that you provide formal consent to this interview. You may do so by completing this consent form, or by providing verbal consent.

Confidentiality

Your identity and contact information will be kept confidential, unless you indicate otherwise. If you wish to maintain confidentiality, your responses will be stored and presented in a manner that protects your identity. You nor your community or work will be specifically identified. Only generalized summaries will be reported. This means only I will have access to identifiable data.

Please select one and check the appropriate box:

My identity is to be kept confidential. My comments may be reported, but my name, position, organization/agency may not be identified in any published materials. Yes [ ] No [ ]

My identity does not need to be kept confidential. My name, organization/agency, and comments may be freely reported in any published materials. Yes [ ] No [ ]

I consent to recording of this interview. Yes [ ] No [ ]

I consent that the tapes be used for transcription purposes Yes [ ] No [ ]

You are free, of course, to decline to answer any questions, and to terminate the interview or withdraw from the study at any time without any cost or negative impact to you.

If you have any questions or concerns regarding your rights or welfare as a participant in this research study, please contact the McGill University Ethics Officer at 514-398-6831 or [email protected]

______Student Researcher’s Signature

341

______Respondent’s Name (please print)

______Respondent’s Signature

______Date

Oral consent provided instead Yes [ ] No [ ]

342

Appendix 2: Recruitment Letter

Date………………………………… Dear

My name is Mohamed Sesay and I am a doctoral student in Political Science at McGill University in Montreal, Canada. I am in [Freetown, your chiefdom, or your village] to conduct a study on the reform of traditional justice in your country after the civil war. In particular, I want to learn how traditional justice influences peace and social harmony in local communities and how reforms affect this role.

During this research, I am affiliated with the Department of Political Science of the University of Sierra Leone and the local NGO Timap for Justice.

[Your name was suggested to me by X.] If you are available, I would like to interview you about your personal and/or professional experiences of post-conflict justice reform in Sierra Leone / Liberia.

The interview would be conducted at your convenience and in a location you are comfortable with, and will last about one hour and a half. If for some reason it takes longer we’ll stop and decide together whether to continue, to take a short break, or continue at a later time. The information collected in the interview can identify you or confidential, whichever you prefer.

If you require further information about the study, please feel free to ask. Thank you for your interest in participating. I look forward to meeting you.

Mohamed Sesay Student researcher Department of Political Science McGill University 855 Sherbrooke Street Montreal (Quebec) H3A 2T7 Email: [email protected] Mobile: (514) 946-3789

Prof. Rex Brynen Faculty supervisor Department of Political Science McGill University 855 Sherbrooke Street West Montréal, QC H3A 2T7 CANADA Phone: +1 514 398-4400 ext. 00634 Email: [email protected]

343

Appendix 3: Interview protocol

Date of interview:………………………………………………………………………….. Time:……………………………………………………………………………………….. Place:……………………………………………………………………………………….. Name of interviewer:………………………………………………………………………. Name of interviewee (code):……………………………………………………………….. Occupation:…………………………………………………………………………………. Region…………………….District………………………………………….....……………

Introduction

I am …………………………………………………………….., a third year doctoral student in Political Science at the McGill University in Canada. This interview is part of my academic research and the purpose is to explore justice reform in post-conflict Sierra Leone/Liberia. I want to understand the impact of the reform process in your community.

Before we begin, I wish to present you a consent form which contains more information about the purpose of my research and asks for your permission to be interviewed and tape recorded (I will explain the information contained in this consent form verbally if the participant cannot read and write).

Typical Questions:

1. What are your experiences with the formal justice system since the war?

2. What are your experiences with the informal justice system since the war?

3. What reforms have been made to the justice system in Sierra Leone after the war?

4. What is the impact of these reforms on the justice system in Sierra Leone?

5. How effective are these reform process since the end of the war?

5. Is there any resistance to these changes? If yes, by whom and why? If no, why not?

6. What suggestions do you have for improving/integrating the formal and informal justice systems in Sierra Leone to improve peace building?

7. Is there anything else you’d like to say about justice sector reforms in your community?

8. Who else would you recommend I interview on this subject?

344

Bibliography

Abdullah, Ibrahim. “Bush Path to Destruction: The Origin and Character of the Revolutionary United Front / Sierra Leone.” The Journal of Modern African Studies 36, 2 (1998): 203-235. Abel, Richard L. The Politics of Informal Justice. New York: Academic Press, 1982. Abraham, Arthur. Mende Government and Politics under Colonial Rule. Freetown: Sierra Leone University Press, 1978.

Abraham, Arthur. “The Role of Paramount Chiefs in Development and Government’s Policy and Attitude toward Chieftaincy in Sierra Leone.” Freetown: Fourah Bay College, 1985.

Abraham, Arthur. An Introduction to Pre-colonial History of the Mende of Sierra Leone. Lewiston, NY: Mellen, 2003.

Albrecht, Peter, and Paul Jackson, ed. Security Sector Transformation in Sierra Leone. London: Global Facilitation Network for Security Sector Reform and International Alert, 2009.

Access to Security and Justice Program (ASJP). “Chiefs of Sierra Leone: Code of Ethics and Service Standards.” Freetown: ASJP, 2013.

Acemoglu, Daron, T. Reed, and J. A. Robinson. “Chiefs: Economic Development and Elite Control of Civil Society in Sierra Leone.” Journal of Political Economy 122, 2 (2014): 319-368.

Adebajo, Adekeye. “West Africa’s Tragic Twins: Building Peace in Liberia and Sierra Leone.” In Building Sustainable Peace, edited by Andy W. Knight and Thomas F. Keating. New York: United Nations University Press, 2004.

Adebajo, Adekeye and Ismail Rashid, ed. West Africa’s Security Challenges: Building Peace in a Troubled Region. Boulder: Lynne Reinner Publishers, 2004.

Akuffo, Kwame. “Equity in Colonial West Africa: A Paradigm of Juridical Dislocation.” Journal of African Law 50, 2 (2006): 132-144.

Albrecht, Peter. “Betwixt and Between: Chiefs and Reform of Sierra Leone Justice Sector.” Danish Institute for International Studies (DIIS), Working Paper 33 (2010).

Albrecht, Peter, and Paul Jackson, ed. Security Sector Transformation in Sierra Leone. London: Global Facilitation Network for Security Sector Reform and International Alert, 2009.

Alie, Joe A. D. A New History of Sierra Leone. New York: St. Martin’s, 1990.

Alie, Joe A. D. “Reconciliation and Traditional Justice: Tradition-based Practices of the Kpaa Mende in Sierra Leone.” In Traditional Justice and Reconciliation after Violent Conflict:

345

Lessons from African Experience, edited by L. Huyse and M. Salter. Stockholm: International Institute for Democracy and Electoral Assistance, 2008.

Allott, A. N. “What is to be Done with African Customary Law? The Experiences of Problems and Reforms in Anglophone Africa from 1950.” Journal of African Law 28, 1/2 (1984): 56-71.

Alterman, Owen, Aneta Benienda, Sophie Rodella and Kimyia Varzi. “The Law People See: The Status of Dispute Resolution in the Provinces of Sierra Leone in 2002.” A National Forum for Human Rights Publication, 2002.

Arzt, Donna. “Views on the Ground: The Local Perception of International Criminal Tribunals in the Former Yugoslavia and Sierra Leone.” The Annals of the American Academy of Political and Social Science 603, 1 (2006): 226-239.

Asher, Shekedi. Multiple Case Narrative: A Qualitative Approach to Studying Multiple Populations. Amsterdam: John Benjamins Publishing Company, 2005.

Atkinson, Paul. “Writing Ethnography.” In Kultur and Institution, edited by H. J. Helle. Berlin: Duncker & Humblot, 1983.

Ayittey, George B. N. Indigenous African Institutions. Ardsley, NY: Transnational Publishers, 2006.

Ayittey, George. B. N. “Traditional Institutions and the State of Accountability in Africa.” Social Research 77, 4 (2010): 1183-1210.

Baker, Bruce. “Who do People Turn to for Policing in Sierra Leone?” Journal of Contemporary African Studies 23, 3 (2005): 371-90.

Baker, Bruce. “Beyond the Tarmac Road: Local Forms of Policing in Sierra Leone and Rwanda.” Review of African Political Economy 35, 118 (2008): 555-570.

Baker, Bruce. “Linking State and Non-state Security and Justice.” Development Policy Review 28, 5 (2010): 597-616.

Bamfo, Napoleon. “The Hidden Elements of Democracy among Akyem Chieftaincy: Enstoolment, Destoolment, and other Limitations of Power.” Journal of Black Studies 31, 2 (2000): 149-173.

Banton, Michael. West African City: A Study of Tribal Life in Freetown. London: Oxford University Press, 1957.

Barnhizer, David, and Daniel Barnhizer. Hypocrisy and Myths: The Hidden Order of the Rule of Law. Lake Mary: Vandeplas Publishing, 2009.

346

Barrows, Walter. Grassroots Politics in an African State: Integration and development in Sierra Leone. New York: Holmes & Meier, 1976.

Bayart, Jean-Francois. The State in Africa: The Politics of the Belly. Cambridge: Polity Press, 2009. Beaulac, Stephane. “Lost in Translation? Domestic Courts, International Law and Rule of Law a la carte.” In International Law in domestic Courts: Rule of Law Reform in Post-conflict States, edited by Edda, Kristjansdotter, Andre Nollkaemper, and Cedic Ryngaer. Cambridge: Intersentia, 2012. Bennett, Tom W. African Perspectives of Tradition and Justice. Portland, OR: Intersentia, 2012. Benton, Lauren. “Beyond Legal Pluralism: Towards a New Approach to Law in the Informal Sector.” Social and Legal Studies 3 (1994): 223-242. Bering, Rasmus C. “The Government-Chieftaincy Power Nexus in Sierra Leone: Implications for Conflict Creation.” Master’s thesis in Peace and Conflict Studies, University of Oslo, 2010. Boesen, Nils. “Governance and Accountability: How do the Formal and Informal Interplay and Change?” Paper prepared for the OECD Development Center and Development Assistance Committee, unpublished. Bogdan, Robert C., and Sari K. Biklen. Qualitative Research for Education: An Introduction to Theory and Methods. Boston: Allyn and Bacon Inc., 1992.

Boone, Catherine. Political Topographies of the African State: Territorial Authority and Institutional Choice. Cambridge: Cambridge University Press, 2003.

Booth, David. “Introduction: Working with the Grain?” The Africa Power and Politics Program (APPP), Institute of Development Studies Bulletin 42, 2 (2010).

Boutros-Ghali, Boutros. “An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peacekeeping.” New York: United Nations, 1992.

Bratton, Michael. “State Building and Democratization in Sun-Saharan Africa: Forwards, Backwards, or Together?” Afrobarometer Working Paper 43 (2004).

Bratton, Michael, and Nicolas Van De Walle. Democratic Experiments in Africa: Regime Transitions in Comparative Perspectives. Cambridge: Cambridge University Press, 1997.

Brautigam, Deborah. “Substituting for the State: Institutions and Industrial Development in Eastern Nigeria,” World Development 25, 7 (1997): 1063-1080.

Brooke, N. J. Esq. Report on the Native Court System in Sierra Leone. Freetown: Government Printing Press, 1953.

347

Brooks, Rosa E. “The New imperialism: Violence, Norms, and the Rule of Law.” Michigan Law Review 101 (June 2003).

Brown, Taylor, Richard Fanthorpe, Janet Gardener, Lansana Gberie, and M. Gibril Sesay. “Sierra Leone Drivers of Change.” Bristol: IDL Group, 2005.

Bryman, Alan, and Robert Burgess. Analyzing Qualitative Data. London: Routledge, 1994.

Buur, Lars, and Helene Maria Kyed. “Contested Sources of Authority: Reclaiming State Sovereignty by Formalizing Traditional Authority in Mozambique.” Development and Change 37, 4 (2006): 847-869.

Camara K. Fatou. “From Contemporary Laws to Indigenous African Law: Identifying Ancient African Human Rights and Good Governance Sensitive Principles as a Tool to Promote Culturally Meaningful Socio-Legal reforms.” In The Future of African Customary Law, edited by Jeanmarie Fenrich, Paolo Galizzi, and Tracy E Higgins. Cambridge: Cambridge University Press, 2011.

Carothers, Thomas. “The Rule of Law Revival.” Foreign Affairs 77, 2 (1998): 95-106.

Carothers, Thomas. Promoting the Rule of Law Abroad: In Search of Knowledge. Washington, D.C.: Carnegie Endowment for International Peace, 2006.

Cartwright, John R. Politics in Sierra Leone, 1947-67. Toronto: Univ. Toronto Press, 1970.

Castillejo, Clare. “Building Accountable Justice in Sierra Leone.” Working Paper 76, PRIDE 2009.

Cavalcante, Fernando. “The United Nations Peacebuilding Architecture: Background Notes.” The Global Governance Institute, Briefing Paper 1 (2011).

Chabal, Patrick, and Jean-Pascal Daloz. Africa Works: Disorder as Political Instrument. Bloomington: Indiana University Press, 1999.

Chandler, David. Empire in Denial: The Politics of State-building. London: Ann Arbor, MI: Pluto, 2006.

Chanock, Martin. Law, Customs, and Social Order: the Colonial Experience in Malawi and Zambia. Cambridge: Cambridge University Press, 1985.

Chanock, Martin. “Neither Customary nor Legal: African Customary Law in an Era of Family Law Reform.” International Journal of Family Law 3, 1 (1989): 72-88.

Chauveau, Jean-Pierre, and Paul Richards. “West African Insurgencies in Agrarian Perspective: Cote d’Ivoire and Sierra Leone Compared.” Journal of Agrarian Change 8, 4 (2008): 515-552.

348

Chazan, Noami, et al. eds. Politics and Society in Contemporary Africa. Boulder: Lynne Rienner Publishers, 1999. Chirayath, Leila, Caroline Sage, and Michael Woolcock. “Customary Law and Policy Reform: Engaging with the Plurality of Justice Systems.” Background paper for the World Development Report: Equity and Development, 2005.

Chopra, Tanja, and Deborah Isser. “Access to Justice and Legal Pluralism in Fragile States: The Case of Women’s Rights.” Hague Journal of the Rule of Law 4, 02 (2012): 337-358.

Chua, Amy. World on Fire: How Exporting Free Market Democracy Breeds Ethnic Hatred and Global Instability. New York: Anchor, 2004.

Clapham, Christopher. “Peacebuilding without a State: The Somalia Experience.” In Peacebuilding, Power, and Politics in Africa, edited by Devon Curtis, Gwinyayi A. Dzinesa, and Adekeye Adebayo. Athens: Ohio University Press, 2012.

Cleaver, Francis, Tom Franks, and Faustin Maganga, and Kurt Hall. “Institutions, Security, and Pastoralism: Explaining the Limits of Hybridity.” African Studies Review 56, 3 (2013): 165-189.

Clifford, Mary L. The Law and People of Sierra Leone. Philadelphia: J. B. Lippincott Company, 1974.

Cohen, Dennis, and John Daniel. Political Economy of Africa: Selected Readings. London: Longman, 1981.

Cohen, Youssef, Brian R. Brown, and A. F. K. Organski. “The Paradoxical Nature of State Making: The Violent Creation of Order.” The American Political Science Review 75, 4 (1981): 901-910.

Collier, David, and Steven Levitsky. “Democracy with Adjectives: Conceptual Innovation in Comparative Politics.” World Politics 49 (1997): 430-451. Collier, David, Jason Seawright, and Jody LaPorte. “Putting Typologies to Work: Concept Formation, Measurement, and Analytical Rigor.” Political Research Quarterly 65, 1(2012): 217- 232. Collier, Gershon. Sierra Leone: Experiment in democracy in an African nation. London: University of London Press, 1970.

Congressional Research Service. “Liberia’s Post-war Recovery: Key Issues and Developments.” Prepared by Nicolas Cook, Specialist in African Affairs, February 2009.

Connolly, Brynna. “Non-State Justice Systems and the State: Proposals for a Recognition Typology.” Connecticut Law Review 38 (2005): 239-294.

349

Conteh, Mohamed N. The Institution of Paramount Chieftaincy in Sierra Leone: An Introduction to its History and Electoral Process, unpublished.

Cox, Thomas S. Civil-military Relations in Sierra Leone: A case Study of African Soldiers in Politics. Massachusetts: Harvard University Press, 1976.

Cresswell, John W. Education Research: Planning, Conducting, and Evaluating Quantitative and Qualitative Research. New Jersey: Pearson Education Inc., 2008. Curtis, Devon, Gwinyayi A. Dzinesa, and Adekeye Adebayo. Peacebuilding, Power, and Politics in Africa. Athens: Ohio University Press, 2012.

Dale, Pamela. “Access to justice in Sierra Leone.” World Bank Justice for the Poor, 2008. http://siteresources.worldbank.org/INTJUSFORPOOR/Resources/Access2JusticeSierr aLeoneLitReview.pdf, (accessed 10 January 2015).

Denney, Lisa. “Liberal Chiefs or Illiberal Development? The Challenge of Engaging Chiefs in DFID’s Security Sector Reform Programme in Sierra Leone.” Development Policy Review 31, 1 (2013): 5-25.

Denney, Lisa. Justice and Security Reform: Development Agencies and Informal Institutions in Sierra Leone. London: Routledge, 2014.

Dey, Ian. Qualitative Data Analysis: A User-friendly Guide for Social Scientist. London: Routledge, 1993.

Dicey Albert V. Introduction to the Study of the Rule of Law of the Constitution. London: Macmillan and Co. Limited, 1915.

Dickinson, Laura A. “The Promise of Hybrid Courts.” The American Journal of International Law 97, 2 (2003): 295-310.

DFID. “Making Government Work for the Poor: Building State Capability.” London: Department for International Development, 2001.

DFID. “Safety, Security, and Accessible Justice (SSAJ): Putting Policy into Practice.” London: Department for International Development, 2002.

DFID. “The Africa Conflict Prevention Pool: An Information Document.” London: Department for International Development, 2004.

DFID. “Evaluation of the Conflict Prevention Pools: Sierra Leone Report.” Prepared by Jeremy Genifer with input from Kaye Oliver, March 2004.

DFID. “Building the State and Securing the Peace.” London: Department for International Development, 2009.

350

DFID. “Building the State and Securing the Peace.” Policy Paper, 2009.

DFID. “Building Peaceful States and Societies.” A DFID Practice Paper, 2010. DFID. “Project Completion Report for the Justice Sector Development Program.” DFID/Sierra Leone, July 2011.

DFID. “Operation Plan 2011-2015 Sierra Leone.” London: Department for International Development. London, 2012.

Donais, Timothy. “Empowerment or Imposition? Dilemmas of Local Ownership in Post-Conflict Peacebuilding Processes.” Peace and Change 34, no. 1 (2009): 3-26.

Donias, Timothy. Peacebuilding and Local Ownership: Post-conflict Consensus Building. London: Routledge, 2012.

Dressel, Bjorn. The Judicialization of Politics in Asia. Milton Park: Routledge, 2012. Duffield Mark R., and Vernon M. Hewitt. Empire, Development and Colonialism: The Past in the Present. Woodbridge, Suffolk: James Currey, 2009.

Dyck, Christopher B. “States of Unrest: Critiquing Liberal Peacebuilding and Security Sector Reform in Post-Conflict Sierra Leone (2001-2012) and Liberia (2003-2013).” Ph.D. Dissertation, University of Alberta, 2013.

Ekeh, Peter P. “Colonialism and the Two Publics in Africa: A Theoretical Statement.” Comparative Studies in Society and History 17, 1 (1975): 91-112.

Ellis, Stephen. The Mask of Anarchy: The Destruction of Liberia and the Religious Dimension of an African Civil War (2nd Ed.). New York: New York University Press, 2003.

Ellis, Stephen, and Mats Utas. “The Mask of Anarchy: The Destruction of Liberia and the Religious Dimension of an African Civil War.” African Studies Review 51, 1 (2008): 155.

Englebert, Pierre. State Legitimacy and Development in Africa. Boulder: Lynne Reinner Publishers, 2000. Englebert, Pierre. “Pre-colonial Institutions, Post-colonial States, and Economic Development in Africa,” Political Research Quarterly 53, 1 (2000):7-36. Englebert, Pierre. Africa Unity, Sovereignty, and Sorrow, Boulder: Lynne Reinner Publishers, 2009. Englebert, Pierre, and Dennis M. Tull. “Post-colonial Reconstruction in Africa: Flawed Ideas about Failed States,” International Security 32, 4 (2008): 106-139.

Fallon, Richard H. Jr. “Legitimacy and the Constitution.” Harvard Law Review 118, 6 (2005): 1789-1851.

351

Fanthorpe, Richard. “Locating the Politics of a Sierra Leonean Chiefdom.” Africa 68, 4 (1998): 558-84.

Fanthorpe, Richard. “Neither Citizen nor Subject? ‘Lumpen’ Agency and the Legacy of Native Administration in Sierra Leone.” African Affairs 100 (2001): 363-86.

Fanthorpe, Richard. “On the Limits of Liberal Peace: Chiefs and Democratic Decentralisation in Post-war Sierra Leone.” African Affairs 105, 418 (2005): 27-49.

Fanthorpe, Richard. “Chieftaincy and the Politics of Post-war Reconstruction in Sierra Leone.” http://r4d.dfid.gov.uk/PDF/Outputs/Mis_SPC/R8095c.pdf unpublished (accessed 21 April 2014).

Fanthorpe, Richard, and Mohamed G. Sesay. “Reform is not against Tradition: Making Chieftaincy Relevant in 21st Century Sierra Leone.” Freetown: Partners in Conflict Transformation (PICOT), 2009.

Farrar, Tarikhu. “When African Kings Became “Chiefs”: Some Transformations in European Perceptions of West African civilization, c. 1450-1800.” Journal of Black Studies 23, 2 (1992): 258-278.

Fawole, Alade W., and Ukeje Charles. The Crisis of the State and Regionalism in West Africa: Identity, Citizenship, and Conflict, Dakar: CODESRIA, 2005. Felstiner, William L. F. “Influences of Social Organization of Dispute Processing.” Law and Society Review 63 (1974): 64-94.

Fenrich, Jeanmarie, Paola Galizzi, and Tracy E. Higgins. The Future of African Customary Law. Cambridge: Cambridge University Press, 2011.

Finnegan, Ruth, and David J. Murray. “Limba Chiefs.” In West African Chiefs: Their changing status under colonial rule and independence, edited by Michael Crowder and Obaro Ikime. New York: Africana Publishing Corporation, 1970.

Flomoku, Pewee, and Lemuel Reeves. “Formal and Informal Justice in Liberia.” Accord 44, 23 (2010).

Fofanah, Abdulai S. “Customary Law Courts.” A position Paper for the Law Reform Commission, Sierra Leone, 2005. Fyfe, Clifford. A History of Sierra Leone. London: Oxford University Press, 1962.

Gbla, Osman. “Security Sector Reform under International Tutelage in Sierra Leone.” International Peacekeeping 13, 1 (2006): 78–93.

Gbla, Osman. “The Role of External Actors in Sierra Leone’s Security Reform.” In When the State Fails: Studies on Intervention in the Sierra Leonean Civil War, edited by Tunde Zack- Williams. London: Pluto Press, 2012.

352

Geertz, Clifford. Interpretation of Cultures: Selected Essays. New York: Basic Books, 1973.

Gerring, John. Case Study Research: Principles and Practices. Cambridge: Cambridge University Press, 2007.

Gillham, Bill. Case Study Research Methods. London: Continuum International Publishing, 2010.

Global Witness. “Logging in the Shadows: How Vested Interests Abuse Shadow Permits to Evade Forest Sector Reforms. An analysis of Recent Trends in Cameroon, Ghana, the Democratic Republic of Congo, and Liberia.” Report, April 2013.

Gloppen, Siri, Roberto Gargarella, and Elin Skaar. “Introduction: The Accountability Function of the Courts in New Democracies.” Democratization 10, 4 (2003): 1-6.

Gluckman, Max. Ideas and Procedures in African Customary Law: Studies Presented and Discussed at the English International African Seminar at the Haile Selassie I University, Addis Ababa. Oxford: Oxford University Press, 1969.

Government of Liberia. “Comprehensive Peace Agreement between the Government, LURD, MODEL, and Political Parties.” Signed 18 August, 2003.

Government of Liberia and the IMF. “Liberia’s Poverty Reduction Strategy Paper.” July 2008.

Government of Liberia. “President Sirleaf says Traditional Chiefs are Unifying Strength of Liberia.” Statement by the Executive Mansion, 21 July 2009. Government of Liberia. Liberia’s Truth and Reconciliation Commission Report, 2010.

Government of Liberia. Report on the Issuance of Private Use Permits (PUPs). Presented to the President of Liberia, H. E. Ellen Johnson Sirleaf, December 2012.

Government of Liberia. Liberia’s Medium Term Economic Growth and Development Strategy (2012-2017)—Agenda for Transformation: Steps toward Liberia Rising 2030. Prepared by the Ministry of Planning and Economic Affairs.

Government of Sierra Leone. National Recovery Strategy of Sierra Leone 2002-2003: le we join an fo mek Salone go bifo: A Framework for Recovery Effort after an Assessment, 2002.

Government of Sierra Leone. National Long-term Perspective Studies (NLTPS): Sierra Leone Vision 2025. Sweet Salone—Strategies for National Transformation. Freetown: Government Printing Press, August 2003.

Government of Sierra Leone. Sierra Leone Truth and Reconciliation Commission Report, 2004.

353

Government of Sierra Leone. Poverty Reduction Strategy Paper (SL-PRSP): A National Program for Food Security, Job Creation and Good Governance (2005-2007). Freetown: Government Printing Press, February 2005.

Government of Sierra Leone and the World Bank. Republic of Sierra Leone Mineral Sector Technical Assistant Project (MTAP), Environmental and Social Impact Assessment (ESIA) Study, final report produced by Ernest Tom Ndomahina, 2008.

Government of Sierra Leone. The Agenda for Change: Government’s Policies for Sierra Leone’s Poverty Reduction Strategy. Freetown: Government Printing Press, December 2008.

Government of Sierra Leone. The Chiefdom and Traditional Administration Policy. Freetown: Government Printing Press, November 2012.

Government of Sierra Leone. The Agenda for Prosperity: Road to Middle Income Status. Sierra Leone’s Third Generation Poverty Reduction Strategy Paper (2013-2018). Freetown: Government Printing Press, 2012.

Grenfell, Laura. Promoting the Rule of Law in Post-conflict States. Cambridge: Cambridge University Press, 2013.

Grief, Avner, and David Laitin. “A Theory of Endogenous Institutional Change.” American Political Science Review 98, 4 (2004): 633-652. Gutkind Peter C. W., and Immanuel M. Wallerstein. The Political Economy of Contemporary Africa. Beverly Hills, Calif.: Sage Publications, 1976. Haggard, Stephen, and Lydia Tiede. “The Rule of Law in Post-conflict Settings: The Empirical Record.” International Studies Quarterly 58 (2014): 405–417. Hall, Peter, and Rosemary C. R. Taylor. “Political Science and the Three New Institutionalisms.” Political Studies XLIV (1996): 936-957.

Harper, Erica. Customary Justice: From Program Design to Impact Evaluation. Rome: International Development Law Organization, 2011.

Harper, Erica. Working with Customary Justice Systems: Post-conflict and Fragile States. Rome: International Development Organization, 2011.

Harrell-Bond, Barbara E. and U. Rijnsdorp. Family Law in Sierra Leone: A Research Report. Leiden: Afrika-Studiecentrum, 1974.

Harrell-Bond, Barbara E, Allen M Howard, and David E Skinner. Community Leadership and the Transformation of Freetown (1801-1976). The Hague: Mounton, 1978.

Harris, David. Civil War and Democracy in West Africa: Conflict Resolution, Elections and Justice in Sierra Leone and Liberia. New York: I .B. Tauris, 2012.

354

Richard, Harris L. The Political Economy of Africa. Cambridge, Mass.: Schenkman Pub. Co., 1975.

Hay, Iain. Qualitative Research Methods in Human Geography. Oxford: Oxford University Press, 2012. Hayner, Priscilla B. Unspeakable Truth: Confronting State Terror and Atrocity. New York: Routledge, 2001. Hawes, Frank, Ken Lizzio, and Willa Reeves. “Lessons Learned Evaluation: Access to Justice and Information (project implemented by the Carter Center).” Conducted for the USAID/Liberia, June 2013.

Helmke, Gretchen, and Steven Levitsky. “Informal Institutions and Comparative Politics: A Research Agenda.” Perspectives of Politics 2.4 (2004): 725-740.

Helmke, Gretchen, and Steven Levitsky. Informal Institutions and Democracy: Lessons from Latin America. Baltimore: Johns Hopkins University Press, 2006.

Henderson, Keith, Charles Jakosa, and Charles Gibson. “Evaluation of Rule of Law Programs in Liberia.” Prepared for the USAID, April 2009.

Herbert Smith Freehills, Standard Chartered, and Prudential Plc. Sierra Leone. “An Investment Guide: A Private Sector Perspective on the Investment Landscape.” Freetown: SLIEPA, July 2015. Herbst, Jeffery. States and Power in Africa: Comparative Lessons in Authority and Control. Princeton: Princeton University Press, 2009.

Hinz, Manfred O., and Helgard K Patemann. The Shades of New Leaves: Governance in Traditional Authority: A Southern African Perspective. Berlin: Lit, 2006.

Hirschl, Ran. “The Judicialization of Mega-politics and the Rise of Political Courts.” Annual Review of Political Science 11 (2008): 93-118.

Honigmann, John J. “Sampling in Ethnographic Fieldwork.” In Field Research: A Source Book and Field Manual, edited by Robert.G. Burgess. London: Allen & Unwin, 1982.

Human Right Watch. “Whose Development? Human Rights Abuses in Sierra Leone Mining Boom.” Country report, February, 2014.

Huntington, Samuel. Political Order in Changing Societies. New Haven: Yale University Press, 1968.

Huyes, Luc, and Mark Salter. Traditional Justice and Reconciliation after Violent Conflict: Learning from African Experiences. Stockholm: International Institute for Democracy and Electoral Assistance, 2008.

355

Hyden, Goran. No Shortcuts to Progress: African Development Management in Perspective. Berkeley: University of California Press, 1983.

Hyden, Goran. “Institutions, power, and policy outcomes in Africa.” Africa power politics program, Discussion paper 2 (June 2008).

Ibhawoh, Bonny. “Historical Globalization and Colonial Legal Culture: African Assessors, Customary Law, and Criminal Justice in British Africa.” Journal of Global History 4, 03 (2009): 429-451.

Ikenberry, John G. After Victory: Institutions, Strategic Restraint, and the Rebuilding of Order after Major Wars. Princeton: Princeton University Press, 2001.

International African Seminar. Ideas and Procedures in African Customary Law: Studies Presented and Discussed at the Eighth International African Seminar at the Haile Selassie I University, Addis Ababa, January 1966. London: Oxford University Press, 1969.

International Crisis Group. “Liberia and Sierra Leone: Rebuilding Failed States.” December 2004.

International Crisis Group. “Liberia: Resurrecting the Justice System.” African Report, No. 107 (April 2006).

Isser, Deborah. Customary Justice and the Rule of Law in War-torn Societies. Washington, D.C.: United States Institute of Peace Press, 2011.

Isser, Deborah, Stephen C, Lubkemann, and Saah N’Tow. “Looking for Justice: Liberians Experiences with and Perceptions of Local Justice Options.” Washington, D.C.: United States Institute of Peace, 2009.

Jackson, Paul. “Chiefs, Money and Politicians: Rebuilding Local Government in Post- War Sierra Leone.” Public Administration & Development 25, 1 (2005): 49-58.

Jackson, Paul. “Reshuffling an Old Deck of Cards? The Politics of Local Government in Sierra Leone.” African Affairs 106, 422 (2006): 95-111.

Jackson, Paul. “Decentralized Power and Traditional Authorities: How Power Determines Access to Justice in Sierra Leone.” Journal of Legal Pluralism and Unofficial Law 43, 63 (2011): 207-230.

Jackson, Paul, and Peter Albrecht. “Security Sector Reform in Sierra Leone 1997-2007: Views from the Frontline.” Prepared for the Geneva Center for the Democratic Control of Armed Forces, May 2010.

Jackson, Robert H., and Carl G. Rosberg. “Why Africa’s Weak States Persist: The Empirical and the Juridical in Statehood.” World Politics 35, 1 (1982): 1-24.

356

Joireman, Sandra F. “Inherited Legal Systems and Effective Rule of Law: Africa and the Colonial Legacy.” The Journal of Modern African Studies 39, 4 (2001): 571-596.

Joireman, Sandra F. “Colonization and the Rule of Law: Comparing the Effectiveness of Common Law and Civil Law Countries.” Constitutional Political Economy 15 (2004): 315–338.

Justice Sector Coordination Office. “The Justice Sector Reform Strategy and Investment Plan 2008-2010.” Freetown: Government of Sierra Leone, 2007.

Kandeh, Jimmy. “Politicization of ethnic identities in Sierra Leone.” African Studies Review 35, 01 (1992): 81-99.

Kandeh, Jimmy. “Intervention and Peacebuilding in Sierra Leone: A Critical Perspective.” In When the State Fails: Studies on Interventions in the Sierra Leone Civil War, edited by Tunde Zack-Williams. London: Pluto Press 2012.

Keating, Thomas F., and Andy W. Knight. Building Sustainable Peace. New York: United Nations University Press, 2004.

Keen, David. Conflict & Collusion in Sierra Leone. New York: Palgrave, 2005. Kelsall, Tim. “Truth, Lies, Ritual: Preliminary Reflections on the Truth and Reconciliation Commission in Sierra Leone.” Human Rights Quarterly 27, 2 (2005): 361-391. Kelsall, Tim. “Going with the Grain in African Development?” Development Policy Review 26, 6 (2008): 627-55.

Kelsall, Tim. Culture under Cross-examination: International Justice and the Special Court for Sierra Leone. Cambridge; New York: Cambridge University Press, 2009.

Kelsall, Tim, and David Booth with D. Commack & F. Golooba-Mutebi. “Developmental Patrimonialism? Questioning the Orthodoxy of Political Governance and Economic Progress in Africa.” Working Paper 9, Africa Power Politics Program, 2010.

Keohane, Robert O. After Hegemony: Cooperation and Discord in the World Political Economy (Princeton: Princeton University Press, 1984.

Kerrigan, Fergus. “Informal Justice Systems: Charting a Course for Human Rights-based Engagement.” UN report produced for UNDP, UNICEF, and UN Women, 2012.

Kieh, George K. Jr. Beyond State Failure and Collapse: Making the State Relevant in Africa, Boulder: Lexington Books, 2007. Kilson, Martin. Political Change in a West African State: A Study of the Modernization Process in Sierra Leone. Cambridge: Harvard University Press, 1996.

357

King, Gary, Robert O. Keohane, and Sidney Verba. Designing Social Inquiry: Scientific Inference in Qualitative Research. Princeton, N.J.: Princeton University Press, 1994.

Kitchen, Rob, and Nicholas J. Tate. Conducting Research into Human Geography: Theory, Methodology, and Practice. Harlow: Pearson Education Limited, 2000.

Knight, Jack. Institutions and Social Conflict. Cambridge: Cambridge University Press, 1992. Koremenos, Barbara, Charles Lipson, and Duncan Snidal eds. The Rational Design of International Institutions. Cambridge: Cambridge University Press, 2004.

Kotter, Matthias, Tilmann J. Roder, Gunner F. Schuppert, and Rudiger Wolfrum. Non-state Justice Institutions and the Law: Decision-making at the Interface of Tradition, Religion, and the State. Basingstoke: Palgrave Macmillan, 2015.

Kramer, Mario. “Neither Despotic nor Civil: The Legitimacy of Chieftaincy in its Relationship with the ANC and the State in KwaZulu-Natal (South Africa).” The Journal of Modern African Studies 54, 01 (2016): 117-143.

Kristjansdotter, Edda, Andre Nollkaemper, and Cedic Ryngaer. International Law in domestic Courts: Rule of Law Reform in Post-conflict States. Cambridge: Intersentia, 2012.

Kritzer, Herbert M. Political Culture and the Propensity to Sue. Madison, Wisconsin: Disputes Processing Research Program, 1988.

Kup, Alexander P. Sierra Leone: A Concise History. London: David and Charles, 1975.

Kurz, Christof P. “What You See is What You Get: Analytical Lenses and the Limitations of Post-Conflict Statebuilding in Sierra Leone.” Journal of Intervention and Statebuilding 4, 2 (2010): 205-236.

Lentz, Carola. “The Chief, the Mine, Captain, and the Politician: Legitimizing Power in Northern Ghana.” Journal of the International African Institute 68, 1 (1998): 46-67.

Leonardi, Cherry, Deborah Isser, Leben Moro, and Martina Santschi. “The Politics of Customary Law Ascertainment in South Sudan.” Journal of Legal Pluralism and Unofficial Law 43, 63 (2011): 111-142.

Levitt, Jeremy L. The Evolution of Deadly Conflict in Liberia: From Paternalism to State Collapse. Durban: Carolina Academic Press, 2005.

Lipset, Martin S. “Some Social Requisite of Democracy: Economic Development and Political Legitimacy.” American Political Science Review 53, 1 (1959): 69-105.

Little, Kenneth Lindsay. The Mende of Sierra Leone: A West African People in Transition. London: Routledge & K. Paul, 1951.

358

Logan, Carolyn. “Selected Chiefs, Elected Councillors and Hybrid Democrats: Popular Perspectives on the Co-existence of Democracy and Traditional Authority.” The Journal of Modern African Studies 47, 1 (2009): 101-28.

Logan, Carolyn. “The Roots of Resilience: Exploring Popular Support for African Traditional Authorities.” African Affairs 112, 448 (2013): 353-76.

Lowenkopf, Martin. Politics in Liberia: The Conservative Road to Development. Stanford, Calif.: Hoover Institution Press, 1976.

Lubkemann, Stephen, Deborah Isser, and Peter Chapman. “Neither State nor Custom— Just Naked Power: The Consequences of Ideals-Oriented Rule of Law Policy-making in Liberia.” Journal of Legal Pluralism 63 (2011): 73-109.

Lund, Christian. “Twilight Institutions: Public Authority and Local Politics in Africa.” Development and Change 37, 4 (2006): 685-705.

MacKenzie, Megan, and Mohamed Sesay. “No Amnesty from/for the International: The Production and Promotion of TRCs as an International Norm in Sierra Leone.” International Studies Perspectives 13 (2012):146-16.

MacLean, Lauren M. Informal Institutions and Citizenship in Rural Africa: Risk and reciprocity in Ghana and Cote D’Ivoire. New York: Cambridge University Press, 2010.

Magbity, John, and Priyadharshini Dias. “Traditional Justice Response to Children in Conflict with the Law in Sierra Leone.” Prepared for the Ministry of Social Welfare, Gender, and Children’s Affairs, 2014.

Mahoney, James, and K. Thelen. Explaining Institutional Change: ambiguity, agency, and power. Cambridge, UK: Cambridge University Press, 2010.

Makuwa, Esther, Maarten Voors, Erwin Bulte, and Paul Richards. “Peasant Grievances and Insurgency in Sierra Leone: Judicial Serfdom as a Driver of Conflict.” African Affairs 110, 440 (2011): 339-366.

Mamdani, Mahmood. Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism. Princeton: Princeton Press, 1996.

Mani, Rama. “Conflict Resolution, Justice and the Law: Rebuilding the Rule of Law in the Aftermath of Complex Political Emergencies.” International Peacekeeping 5, 3 (1998): 1-25.

Manning, Elizabeth R. “The Landscape of Local Authority in Sierra Leone: How Traditional and Modern Justice Systems Interact.” World Bank: Justice and Development Working Paper Series 1, 1 (2009).

359

Mansfield, Edward D., and Jack L. Snyder. Electing to Fight: Why Emerging Democracies Go to War. Cambridge: MIT Press, 2005.

Manteaw, Samuel O. “Legal Education in Africa: What Type of Lawyer Does Africa Need?” McGeorge Law Review 39 (2008): 905-970.

March James G., and Johan P. Olsen, “Institutional Perspectives on Political Institutions.” Governance: An International Journal of Policy and Administration 9, 3 (1996): 247-264.

Marshall, David. The International Rule of Law Movement: A Crisis of Legitimacy and the Way Forward. Cambridge: Harvard University Press, 2014.

Marshall, Fischer, and Andrew Keile. Programmatic Environmental Assessment: For USAID Support to Small-scale Artisanal Mining Activities in Sierra Leone. February 2005.

Maru, Vivek. “Between Law and Society: Paralegals and the Provision of Justice Services in Sierra Leone and Worldwide.” The Yale Journal of International Law 31 (2006): 427-476.

Mazrui, Ali. “Africa: The Political Economy of Nationhood and the Political Economy of the State.” Millennium - Journal of International Studies 12, 3 (1983): 201-210.

Mbawa, Henry Jr. Local Governance and Ethnicity in Sierra Leone: Negotiating Citizenship in Local Councils and Chieftaincy in Sierra Leone. Saarbrucken: Lambert Academic Publishing, 2013.

Meagher, Kate. “Crisis, Informalization and the Urban Informal Sector in sub-Saharan Africa.” Development and Change 26 (1995): 259-284.

Meagher, Kate. Identity Economics: Social Networks and the Informal Economy of Nigeria. Suffolk: James Currey, 2010.

Meagher, Kate. “The Strength of Weak States? Non-state Security Forces and Hybrid Governance in Africa.” Development and Change 43, 5 (2012): 1073-1101.

Medani, Khalid M. “Informal Networks, Economic Livelihoods and the Politics of Social Welfare: Understanding the Political and Humanitarian Consequences of the War on Terrorist Finance.” Journal of Near East and Islamic Law 99 2011.

Mendez, Juan E. “In Defence of Transitional Justice.” In Transitional Justice and the Rule of Law in New Democracies, edited by James A. McAdams. Notre Dame, IN: University of Notre Dame Press, 1997.

Merriam, Sharan B. Qualitative Research and Case Study Applications in Education. San Francisco: Jossey-Bass Publishers, 1998.

Merry, Sally E. “Law and Colonialism.” Law and Society 25, 4 (1991): 889-922.

360

Merry, Sally E. “Global Human Rights and Local Social Movements in a Legally Plural World.” Canadian Journal of Law and Society 30, 3 (1997): 247-274. Merry, Sally E. “Legal Pluralism.” Law and Society Review 22, 5 (1998): 869-896.

Mingst, Karen A. “Judicial Systems of Sub-Saharan Africa: An Analysis of Neglect.” African Studies Review 31, 1 (1988): 135-147

Mkandawire, Thandika. “Thinking about Developmental States in Africa.” Cambridge Journal of Economics 25 (2001): 289-313.

Mokuwa, Esther, Maarten Voors, Erwin Bulte, & Paul. Richards 2011. “Peasant Grievances and Insurgency in Sierra Leone: Judicial Serfdom as a Driver of Conflict.” African Affairs 110, 440 (2011): 339-366.

Momoh, Hindowah B. “Traditional Processes of Peacemaking in War-torn Societies: Situating the New Relevance of Paramount Chieftaincy in Engendering Sustainable peace among the Mendes of Sierra Leone.” Ph.D. Dissertation, Howard University, 2004.

Moncada, Eduardo, and Richard Snyder. “Sub-national Comparative Research on Democracy: Taking Stock and Looking Forward.” Comparative Democratization 10, 1 (2012): 1-43.

Moore, Sally F. “Treating Law as Knowledge: Telling Colonial Officers What to Say to Africans about Running ‘Their Own’ Native Courts.” Law & Society Review 26, 1 (1992): 11-46.

Mutua, Makua W. “Never Again: Questioning the Yugoslav and Rwandan Tribunals.” Temple International and Comparative Law Journal, 11 (1997).

Ndulo, Muna. “From Constitutional Protections to Oversight Mechanisms.” In Peacebuilding and the Rule of Law in Africa: Just Peace? Edited by Chandra L. Sriram, Olga Martin-Ortega, and Johanna Herman. Abingdon: Routledge, 2011.

Nelken, David. “The Concept of Legal Culture.” Australian Journal of Legal Philosophy 29 (2004): 1-26.

Nelson, Harold. “Liberia: A Country Study.” Global Security, 1985 (Accessed 19 June 2015) http://www.globalsecurity.org/military/library/report/1985/liberia_contents.htm

Network Movement for Justice and Development and Cord Netherlands. Land Rights Project: The Social, Economic, and Cultural Impact of Larger-scale Land Investment Deals on Local Communities in Sierra Leone. July 2013.

Newman, Edward, Roland Paris, and Oliver P. Richmond. New Perspectives on Liberal Peacebuilding. Tokyo: United Nations University Press, 2009.

North, Douglas C. Institutions, Institutional Change and Economic Performance. Cambridge University Press, 1990.

361

Ntsebeza, Lungisile. Democracy Compromised: chiefs and the politics of the land in South Africa. Leiden: Brill, 2005.

Obarrio, Juan. “Traditional justice as Rule of Law in Africa: An Anthropological Perspective.” In Peacebuilding and the Rule of Law in Africa: Just Peace? Edited by S. L. Chandra, O. Martin-Ortega & J. Herman. Abingdon: Routledge, 2011.

O'Donnell, Guillermo A. The Quality of Democracy: Theory and Application. Notre Dame: University of Notre Dame Press, 2004.

OECD. “Concepts and Dilemmas of State Building in Fragile Situations: From Fragility to Resilience.” OECD Journal on Development 9, 3 (2009): 61-148.

Office of the United Nations High Commissioner for Human Rights (OHCHR). “Rule of Law Tools for Post-conflict States: Mapping the Justice Sector.” New York and Geneva: UN, 2006.

O’Neill, William. “The Legacy of the Special Court for Sierra Leone.” United Nations Development Program & International Center for Transitional Justice, 2003. Open Society Initiative for West Africa. “Sierra Leone Justice Sector and the Rule of Law.” Prepared by Mohamed Suma. Freetown, 2014.

Organization for Economic Cooperation and Development (OECD). “Ten Principles for Good International Engagement in Fragile States and Situations.” OECD/DAC, 2007.

Panel Reform International (PRI). Access to Justice in sub-Saharan Africa: the role of traditional informal justice system. London: Astron Printers, 2001.

Paris, Roland. “Human Security: Paradigm Shift or Hot Air?” International Security 26, 2 (2001): 87-102.

Paris, Roland. “International Peacebuilding and the Mission Civilisatrice.” Review of International Studies 28, 4 (2002): 637-56.

Paris, Roland. At War’s End: Building Peace after Civil Conflict. Cambridge: Cambridge University Press, 2004.

Paris, Roland, and Timothy D. Sisk. The Dilemmas of Statebuilding: Confronting the contradictions of Postwar Peace Operation. London: Routledge, 2009.

Park, Augustine S. J. “Consolidating Peace: Rule of Law Institutions and Local Justice Practices in Sierra Leone.” Southern African Journal on Human Rights 24 (2008): 536-564.

Partners in Conflict Transformation (PICOT). Training Manual for Human Rights Paralegals.” Accra: Center for Public Interest Law, 2008.

362

Patton, Michael Q. Qualitative Evaluation and Research Methods. Newbury Park, Calif.: Sage Publications, 1990.

Peters, Krijn. War and the Crisis of Youth in Sierra Leone. Cambridge: Cambridge University Press, 2011.

Peters, Krijn, and Paul Richards. “Rebellion and Tensions in Sierra Leone.” Journal of Agrarian Change 11, 3 (2011): 377-395. Peterson, Bjorn. “Post-conflict Reconciliation in Sierra Leone: Lessons Learned.” In Reconciliation Lessons Learned from United Nations Peacekeeping Missions: Case Studies of Sierra Leone and Timor Leste. Report prepared for the Office of the High Commissioner for Human Rights, November, 2004. Peterson, Jenny H. “Rule of Law Initiatives and the Liberal Peace: The Impact of Political Reform in Post-conflict States.” Disasters 34, 1 (2010):15-39.

Pham, John-Peter. Liberia: Portrait of a Failed State. (New York: Reed Press, 2004).

Pierson, Paul. “The Limits of Design: Explaining Institutional Origins and Change.” Governance: An International Journal of Policy and Administration 13, 4 (2000): 475-499.

Pimentel, David. “Rule of Law Reform without Cultural Imperialism? Reinforcing Customary Justice through Collateral Review in Southern Sudan.” Hague Journal on the Rule of Law 2, 01 (2010): 1-28.

Przeworski, Adam, and Henry Teune. The Logic of Comparative Social Inquiry. New York: John Wiley & Sons Inc., 1970.

Pugh, Michael. “Peacekeeping and Critical Theory.” International Peacekeeping 11, 1 (2004): 39-58.

Pugh, Michael. “The Political Economy of Peacebuilding: A Critical Theory Perspective.” International Journal of Peace Studies 10, 2 (2005): 23-42.

Pulver, Robert A. “Rule of Law, Peacekeeping, and the United nations.” In Peacebuilding and the Rule of Law in Africa: Just Peace? Edited by Chandra L. Sriram, Olga Martin-Ortega, and Johanna Herman. Abingdon: Routledge, 2011.

Quinn, Joanna. “Tradition? Traditional Cultural Institution on Customary Practices in Uganda.” Africa Spectrum, 49 3 (2014): 29-54.

Quinn, Joanna. “The Impact of Internal Conflict on Customary Institutions and Law: The Case of Uganda.” Journal of African Law 59, 02 (2015): 220-236.

Rajagopal, Balakrishnan. “Invoking the Rule of Law in Post-conflict Rebuilding: A Critical Examination.” William and Mary Law Review 49, 4 (2008): 1347-1376.

363

Reno, William. Corruption and State Politics in Sierra Leone. Cambridge: Cambridge University Press, 1995.

Reno, William. “Humanitarian Emergencies and Warlord Economies in Liberia and Sierra Leone.” Working Papers, 149. Helsinki: World Institute for Development Economics Research, 1997. Reno, William. Warlord Politics and African States. Boulder: Lynne Rienner Publishers, 1998. Reno, William. Warfare in Independent Africa. Cambridge: Cambridge University Press, 2011. Richards, Paul. Fighting for the Rain Forest: War, Youth, and Resources in Sierra Leone. Portsmouth, N.H.: Heinemann, 1996.

Richards, Paul. “To Fight or to Farm? Agrarian Dimensions of the Mano River Conflicts (Sierra Leone and Liberia).” African Affairs 104, 417 (2005): 571-590.

Richmond, Oliver P. The Transformation of Peace. Basingstoke: Palgrave Macmillan, 2005. Richmond, Oliver P., and Jason Franks. Liberal Peace Transition: Between Statebuilding and Peacebuilding. Edinburgh: Edinburgh University Press, 2009.

Richmond, Oliver P. Palgrave Advances in Peacebuilding: Critical Developments and Approaches. Basingstoke: Palgrave Macmillan, 2010.

Roitman, Janet L. “The Politics of Informal Markets in Sub-Saharan Africa.” The Journal of Modern African Studies 28, 4 (1990): 671-696.

Roitman, Janet L. Fiscal Disobedience: An Anthropology of Economic Regulation in Central Africa. Princeton: Princeton University Press, 2005.

Said, Edward. Orientalism. Rev. ed. New York: Random, 1994.

Sawyer, Amos. The Emergence of Autocracy in Liberia: Tragedy and Challenge. San Francisco, Calif.: Institute for Contemporary Studies, 1992.

Sawyer, Amos. “Violent Conflicts and Governance Challenges in West Africa: The Case of the Mano River Basin Area.” Journal of Modern African Studies 42, 4 (2004): 437-63.

Sawyer, Edward. “Remove or Reform? A Case for (Restructuring) Chiefdom Governance in Post-conflict Sierra Leone.” African Affairs 107, 428 (2008): 387-403.

Saylor, Ralph Gerald. The Economic System of Sierra Leone. Durham, N.C.: Duke University Press, 1967.

Schubert, Glendon A. Political Culture and Judicial Behavior. Lanham, MD: University Press of America, 1985.

364

Seidman, Ann, and Robert B. Seidman. “The Political Economy of Customary Law in the Former British Territories of Africa.” Journal of African Law 28, 1/2 (1984): 44-55.

Sellers, Jeffery M. “Re-placing the Nation: An agenda for Comparative Urban Politics.” Urban Affairs Review 40, 4 (2005): 419-445.

Sesay, Monfred M. “A Baseline Survey of the Local Courts.” Prepared for the Implementation Committee of the New Local Courts Act, Office of the Chief Justice, 2012.

Shaw, Rosalind, Lars Waldorf, and Pierre Hazan. Localizing Transitional Justice: Interventions and Priorities after Mass Atrocity. Stanford: Stanford University Press, 2010.

Sheples, Kenneth A. “Institutional Equilibrium and Equilibrium Institutions.” In Political Science: The Science of Politics, edited by Herbert Weisberg. New York: Agathon, 1986.

Siddiqi, Bilal, and Justin Sandefur. “Community Based Justice and the Rule of Law in Liberia.” Oxford: Centre for the Study of African Economies (CSAE), 2009.

Sinha, Aseema. “Scaling Down and Up: Can Sub-national Analysis Contribute to a Better Understanding of Micro-level and National-level Phenomenon.” Comparative Democratization 10, 1 (2012): 1-43.

Sisk, Tom W. Behold the Promised Land: A History of Afro-American Settler Society in Nineteenth-century Liberia. Baltimore: Johns Hopkins University Press, 1980.

Smart, Joko M. “The Local Courts System in Sierra Leone.” Sierra Leone Studies 22 (1968): 31- 44.

Snyder, Francis. “Customary Law and the Economy.” Journal of African Law 28, 1/2 (1984): 34- 43.

Snyder, Richard. “Scaling Down: The Subnational Comparative Method.” Studies in Comparative International Development 36, 1 (2001): 93-110.

Sriram, Chandra L., Olga Martin-Ortega, and Johanna Herman. Peacebuilding and the Rule of Law in Africa: Just Peace? Abingdon: Routledge, 2011.

Ssenyonjo, Manisuli. “The Rise of the African Union Opposition to the International Criminal Court’s Investigations and Prosecutions of African Leaders.” International Criminal Law Review 13 (2013): 385-428.

Stakes, Robert E. The Art of Case Study Research. Thousand Oaks: Sage Publishers, 1995.

Stromseth, Jane, David Wippman, and Rosa Brooks. Can Might Make Might? Building the Rule of Law after Military Interventions. Cambridge: Cambridge University Press, 2006.

365

Tamanaha, Brian Z. “Introduction: A Bifurcated Theory of Law in Hybrid Societies: The Rule of Law and Non-state Justice.” In Non-state Justice Institutions and the Law: Decision-making at the Interface of Tradition, Religion, and the State, edited by Matthias Kotter, Tilmann J. Roder, Gunner F. Schuppert, and Rudiger Wolfrum. Basingstoke: Palgrave Macmillan, 2015.

Tangri, Roger. “Conflict and Violence in Contemporary Sierra Leone Chiefdoms.” The Journal of Modern African Studies 14, 2 (1976): 311-323.

Tangri, Roger. “Central-local Politics in Contemporary Sierra Leone.” African Affairs (1978): 165-173.

Tangri, Roger. “Paramount Chiefs and Central Governments in Sierra Leone.” African Studies 39, 2 (1980): 183-195.

Tate, Neal C., and Torbjorn Vallinder. The Global Expansion of Judicial Power. New York: New York University Press, 1995.

Teitel, Ruti G. Transitional Justice. New York: Oxford University Press, 2000. The Oakland Institute. “Understanding Land Investment Deals in Africa: Sierra Leone Country Report.” The Oakland Institute, 2011.

Thelen, Kathleen. “Historical Institutionalism in Comparative Politics.” Annual Review of Political Science 2 (1999): 369-404.

Thompson, Niobe. “In Pursuit of Justice: A Report on the Judiciary in Sierra Leone.” A report of the Commonwealth Human Rights Initiative and the Sierra Leone Bar Association, 2002.

Trebilock, Michael J., and Ronald J. Daniels. Rule of Law Development: Charting the Fragile Paths of Progress. Cheltenham: Edward Elgar, 2008.

Tsai, Kellee S. “Adaptive Informal Institutions and Endogenous Institutional Change in China.” World Politics 59, 1 (2007): 116-41.

Tsai, Lilly L. Accountability without Democracy: Solidary Groups and Public Goods Provision in Rural China. Cambridge, NY: Cambridge University Press, 2007.

Tsebelis, George. “Veto Players and Institutional Analysis”, Governance: An International Journal of Policy and Administration 13, 4 (2000): 441-474.

Tull, Dennis M. “A Reconfiguration of Political Order? The State of the State in North Kivu (DR Congo).” African Affairs 102, 408 (2003): 429-446.

UNDP. “Global Program on Strengthening the Rule of Law in Conflict and Post-conflict Situations: Building Peace through Justice and Security.” Annual Report, 2010.

366

UN Department for Peacekeeping Operations (DPKO). United Nations Peacekeeping Operations: Principles and Guidelines. New York: UN Secretariat, 2008.

UN DPKO. “Methodology for Review of Justice and Corrections Components in United Nations Peace Operations.” Prepared by the Department of Field Support, December 2009.

UN DPKO and OHCHR. “The United Nations Rule of Law Indicators: Implementation Guide and Project Tools.” Endorsed by members of the Rule of Law Coordination and Resource Group, 2011.

United Nations High Commissioner for Human Rights. “Rule-of-Law Tools for Post-conflict States: Maximizing the Legacy of Hybrid Courts.” New York: United Nations Publications 08, XIV.2 (2008). United Nations. “A More Secure World: Our Shared Responsibility.” Report of the High-level Panel on Threats, Challenges, and Change, 2004.

United Nations. “United Nations Assistance to Constitution-making Processes.” Guidance Notes of the Secretary-General, April 2009.

United Nations. “United Nations Approach to Transitional Justice.” Guidance Notes of the Secretary-General, March 2010.

United Nations General Assembly. “In Larger Freedoms: Towards Development, Security, and Human Rights for All.” Report of the Secretary-General, March 2005.

United Nations Office of Drugs and Crimes (UNODC). “Access to Justice: The Independence, Impartiality, and Integrity of the Judiciary. Criminal Justice Assessment Toolkit.” New York: United Nations, 2006.

UNODC. Compendium on United Nations Standards and Norms in Crime Prevention and Criminal Justice.” New York: United Nations, 2006.

UNODC. “Criminal Justice Reform in Post-conflict States: A Guide for Practitioners.” Developed jointly with the United States Institute of Peace (USIP), 2011.

UN Security Council. “An Agenda for Peace: Preventive Diplomacy, Peacemaking, and Peacekeeping.” Report of the Secretary-General, January 1992.

UN Security Council. “Report on the Panel on United Nations Peace Operations (Brahimi Report).” New York: United Nations, 2000.

UN Security Council. “The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies.” Report of the Secretary-General, S/2004/616 (2004).

367

UN Security Council. “The Rule of Law at the National and International Levels: Uniting Our Strengths. Enhancing United Nations Support for the Rule of Law.” Report of the Secretary- General, December 2006.

UN Security Council. “The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies.” Report of the Secretary-General, October 2011.

UN Security Council. “Measuring the Effectiveness of the Support Provided by the United Nations System for the Promotion of the Rule of Law in Conflict and Post-conflict Situations.” Report of the Secretary-General, June 2013.

UN Security Council. “Strengthening and Coordinating United Nations Rule of Law Activities.” Report of the Secretary-General, July 2013.

UN Security Council. “Peacebuilding in the Aftermath of Conflict.” Report of the Secretary- General, September 2014.

UN Security Council. “Civilian Capacity in the Aftermath of Conflict.” Report of the Secretary- General, January 2014.

USAID. “Rule of Law Country Analysis: A Guide for USAID Democracy and Governance Officers.” August 2008.

US Department of State. “Guide to Justice Sector Assistance.” Prepared by the Bureau of International Narcotics and Law Enforcement Affairs (INL), 2010.

Van Cott, Donna L. “Dispensing Justice at the Margins of Formality: The Informal Rule of Law in Latin America.” Informal Institutions and Democracy: Lessons from Latin America. Baltimore: Johns Hopkins University Press, 2006.

Van De Walle, Nicolas. African Economies and the Politics of Permanent Crisis, 1979-1999. Cambridge: Cambridge University Press, 2001.

Valenzuela, Samuel J., and Arturo Valenzuela. “Modernization and Dependency: Alternative Perspectives in the Study of Latin American Underdevelopment.” Comparative Politics 10, 4 (1978): 535-557.

Villalon, Leonardo A., and Phillip Huxtable. The African State at a Critical Juncture: Between Disintegration and Reconfiguration. Boulder: Lynne Reinner Publishers, 1998.

Viswasam C. “Local Government in Sierra Leone: A Historical Overview.” Freetown, 1972.

Wai, Zubairu. “Neopatrimonialism and the Discourse of State Failure in Africa.” Review of African Political Economy 39, 13 (2012): 27-43.

368

Wallis, Braithwaithe C. “In the Court of the Native Chiefs in Mendeland.” Journal of the African Society 26, 4 (1905).

Waugh, Colin M. Charles Taylor and Liberia: Ambition and Atrocity in Africa’s Lone Star State. London: Zed Books, 2011.

Weilenmann, Markus. “How to Restate Local Customary Laws in Sierra Leone? A Methodical Support for the Law Reform Commission of Sierra Leone.” Freetown: GTZ-International Service, 2011.

Williams, Michael J. “Leading from Behind: Democratic Consolidation and the Chieftaincy in South Africa.” Journal of Modern African Studies 42, 1 (2004): 113-36.

Williams, Michael J. Chieftaincy, the State, and Democracy: political legitimacy in post- apartheid South Africa. Bloomington, IN: Indiana University Press, 2010.

Winnebah, Thomas R. A., Francis N. Brewah, and Francis Tommy. 2004 Population and Housing Census: Analytical Report of Poverty. Produced for Statistics Sierra Leone, November 2006.

Wojkowska, Ewa. Doing Justice: How Informal Justice Systems can Contribute? UNDP, the Oslo Governance Center, and the Democratic Governance Fellowship Program, 2006.

World Bank. “Sierra Leone: Legal and Judicial Sector Assessment.” Prepared by Minneh Kane, Keith Mackiggan, Chris Mburu, Ibrahim Gassama, Emma Morley, and Christian Eldon, May 2004.

World Bank. World Development Report, 2011.

Wourji, Tsehai W. “Coexistence between the Formal and Informal Justice Systems in Ethiopia: Challenges and Prospects.” African Journal of Legal Studies 5 (2012): 269-293.

Wylie, Kenneth C. The Political Kingdoms of the Temne: Temne Government in Sierra Leone, 1825-1910. New York: Africana Publications Company, 1977.

Wyse, Akintola J. G. The Krio of Sierra Leone: An Interpretive History. Freetown: Okrafto- Smart, 1989.

Yin, Robert K. Case Study Research: Design and Methods (4th edition). Los Angeles: Sage Publications, 2009.

Yusuf, Hakeem, and Abimbola A. Alowofoyeku. Transitional Justice, Judicial Accountability, and the Rule of Law. Abingdon: Routledge, 2010.

Zartman, William I. Collapsed States: The Disintegration and Restoration of Legitimate Authority. Boulder: L. Rienner Publishers, 1995.

369

Zaum, Dominic. “Statebuilding and Governance: The Conundrums of Legitimacy and Local Ownership.” In Peacebuilding, Power, and Politics in Africa, edited by Devon Curtis, Gwinyayi A. Dzinesa, and Adekeye Adebayo. Athens: Ohio University Press, 2012.

Newspapers and other reports Alhaji, Kanji D. “Juxtaposition: When Charlatans are Confused. The Case of Sheick Sowa’s Dabbling with Chieftaincy. Awareness Times, 13 September 2006. Carter Center. “Findings from the Legal Working Group.” Adopted in Monrovia on 10 December 2006.

Carter Center. “News from the Cater Center.” Vol. 1, Issue 1, April 2010.

National Election Watch. “Overt Political Interference Marred Chieftaincy Elections and in 11 Chiefdoms Countrywide Suspended Indefinitely.” Press statement issued on 8 January 2010. Sama, Banya. “The 2010 Paramount Chieftaincy Elections.” Sierra Express Media, 13 January 2010. Sheick, Sowa. “It is a Shame as President Invites Ghanaian Chieftaincy Experts.” Awareness Times, 13 September 2006. The Advocates for Human Rights. A House with Two Rooms: Final Report of the Truth and Reconciliation Commission of Liberia Diaspora Project. A report produced by Dulce Foster, Dianne Heins, Mark Kalla, Michele Garnett McKenzie, James O’Neal, Rosalyn Park, Robin Phillips, Jennifer Prestholdt, Ahmed K. Sirleaf II, and Laura A. Young. Minneapolis: The Advocates for Human Rights, 2009.

“Statement by the Chief Justice, Dr. Ade Renner Thomas duing the Launching of the JSDP.” Awareness Times, 16 September 2005. “Berewa Gives Le 91 Million to Southerners in Sierra Leone.” Awareness Times, 22 February 2006. “Vice President Addresses Durbar of Paramount Chiefs at the Bo Centenary Celebration.” Awareness Times, 19 April 2006. “As Eastern Sierra Leone Builds up Tension Ahead of 2007 Elections, NEC Settles APC/SLPP Palaver in Kono.” Awareness Times, 20 June 2006. “Opening Speech Delivered by the Honorable Vice President, Mr. Solomon Berewa, on the Occasion of the Meeting of Members of the Judicial Service Commission with the National Council of Paramount Chiefs held in Makeni on 19 June 2006.” Awareness Times, 21 June 2006. “Paramount Chief in Sierra Leone Appeals for Salary for Section Chiefs.” Awareness Times, 17 July 2006.

370

“For Holding Meeting with Paramount Chiefs, Sierra Leone APC Leaders says Berewa is Manipulating.” Awareness Times, 3 August 2006. “Sierra Leone Chiefs Warned out of Politics: JJ Saffa says it is a Breach of Their Rights.” Awareness Times, 9 August 2006. “As Kabbah and Christiana Thorpe Exchange Words, Violence in Biriwa: 5 Wounded.” Awareness Times, 14 August 2006. “Over Biriwa Elections, Sierra Leone State House Fires Back.” Awareness Times, 17 August 2006. “Over Biriwa Election Crisis, Sierra Leone Police Boss Denies Manipulation Claim.” Awareness Times, 8 September 2006. “Annie Lansana Salutes Tribal Heads in Sierra Leone.” Awareness Times, 22 November 2006. “Stakeholders Review Restatement of Customary Laws in Moyamba.” Awareness Times, 27 July 2007. “Launching of the Justice Sector Reform and Investment Plan for 2008-2010.” Awareness Times, 19 February 2008. “Ministry of Justice Hosts Discussion on Legal Aid Scheme for Sierra Leone on 13 November.” Awareness Times, 17 November 2008. “Strongly Worded Letter of Complaint by 12 of the 13 Aspirants.” Sierra Express Media, 31 December 2009. “Launch of Local Court Project in Moyamba.” Awareness Times, 19 February 2010. “Two Chiefdom Matters.” Sierra Express Media, 28 July 2010. “Commissioning of Two New Courts in Freetown on 9 December by the Chief Justice.” Awareness Times, 10 December 2010. “Trouble Biriwa Chiefdom.” Sierra Express Media, 29 March 2011. “Government Manipulated my Chieftaincy—says Deposed Biriwa Chief.” Sierra Express Media, 31 March 2011. “President Koroma Presents New Staff to 149 Paramount Chiefs in Sierra Leone.” Sierra Express Media, 27 April 2011. “Paramount Chief Executive Visits President Koroma.” Sierra Express Media, 20 May 2011. “President Tejan Kabbah’s Legacy.” The Sierra Leone Telegraph, 15 March 2013. “Local Government Ministry Embroiled in Chieftaincy Row.” Sierra Express Media, 9 November 2013. “Taylor is no Longer Dahkpannah.” Daily Observer, 30 November 2013.

371

“Nimba Paramount Chief Council Dissolved.” Daily Observer, 8 February 2015.

372