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Working with Customary Justice Systems: Post-Conflict and Fragile States

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Working with Customary Justice Systems: Post-Conflict and Fragile States Erica Harper, Editor Working with Customary Justice Systems: Post-Conflict and Fragile States Erica Harper, Editor Senior Rule of Law Advisor Working with Customary Justice Systems: Post-Conflict and Fragile States Copyright © International Development Law Organization 2011 International Development Law Organization (IDLO) IDLO is an intergovernmental organization that promotes legal, regulatory and institutional reform to advance economic and social development in transitional and developing countries. Founded in 1983 and one of the leaders in rule of law assistance, IDLO's comprehensive approach achieves enduring results by mobilizing stakeholders at all levels of society to drive institutional change. Because IDLO wields no political agenda and has deep expertise in different legal systems and emerging global issues, people and interest groups of diverse backgrounds trust IDLO. It has direct access to government leaders, institutions and multilateral organizations in developing countries, including lawyers, jurists, policymakers, advocates, academics and civil society representatives. Among its activities, IDLO conducts timely, focused and comprehensive research in areas related to sustainable development in the legal, regulatory, and justice sectors. Through such research, IDLO seeks to contribute to existing Practice and scholarship on priority legal issues, and to serve as a conduit for the global exchange of ideas, best practices and lessons learned. IDLO produces a variety of professional legal tools covering interdisciplinary thematic and regional issues; these include book series, country studies, research reports, policy papers, training handbooks, glossaries and benchbooks. Research for these publications is conducted independently with the support of its country offices and in cooperation with international and national partner organizations. Disclaimer IDLO is an inter-governmental organization and its publications are intended to expand legal knowledge, disseminate diverse viewpoints and spark discussion on issues related to law and development. The views expressed in this Publication are the views of the authors and do not necessarily reflect the views or policies of IDLO or its Member States. IDLO does not guarantee the accuracy of the data included in this publication and accepts no responsibility for any consequence of its use. IDLO welcomes any feedback or comments regarding the information contained in the Publication. All rights reserved. This material is copyrighted but may be reproduced by any method without fee for any educational purposes, provided that the source is acknowledged. Formal permission is required for all such uses. For copying in other circumstances or for reproduction in other publications, prior written permission must be granted from the copyright owner and a fee may be charged. Requests for commercial reproduction should be directed to the International Development Law Organization. Published by: International Development Law Organization Viale Vaticano, 106 00165 Rome, Italy Tel: +39 06 4040 3200 Fax: +39 06 4040 3232 www.idlo.int [email protected] Printed by: Quitily Grafica srl Viale Enrico Ortolani 155 00125 Rome, Italy Graphic Design: grafica internazionale Via Rubicone 18 00198 Rome, Italy Cover photo: © Sheila McKinnon ISBN 978-88-96155-05-9 Acknowledgments In developing this book, the author benefited from research conducted and case studies developed by several organizations engaged in the field of customary justice, principally the United States Institute for Peace, the World Bank Justice for the Poor Program and the United Nations Development Programme; she also drew upon lessons from previous interventions undertaken by IDLO in countries such as Indonesia, southern Sudan and Afghanistan. The author would like to extend particular thanks for the insights and recommendations provided by Thomas F McInerney (Director, Research, Policy & Strategic Initiatives, IDLO), Christopher Morris (Project Officer, World Bank Justice for the Poor Program), Deborah Isser (Senior Legal Counsel, World Bank Justice for the Poor Program), and Ilaria Bottigliero (Senior Researcher, IDLO). The author would also like to acknowledge the work undertaken and contributions made by IDLO’s Legal Empowerment and Customary Law Research Grants recipients: Naomi Johnstone (Waitangi Tribunal and Maori Land Court, New Zealand), Maria Vargas Simojoki (Danish Demining Group, Somalia), Amrita Kapur (Judicial System Monitoring Programme, Timor-Leste), Bilal Siddiqi (University of Oxford, United Kingdom), Justin Sandefur (University of Oxford, United Kingdom), Marco Lankhorst (RCN Justice & Démocratie, Rwanda), Muriel Veldman (RCN Justice & Démocratie, Rwanda) and Maggi Carfield (George Washington University, United States); as well as other scholars and practitioners in this field who allowed their work to be reproduced or highlighted in this book, particularly: Janine Ubink (Van Vollenhoven Institute for Law, Governance and Development), Rachael Knight (Project Manager, IDLO), Helene Maria Kyed (Danish Institute for International Studies), Peter Alexander Albrecht (Danish Institute for International Studies), Vijay Kumar Nagaraj (International Council on Human Rights Policy), Ewa Wojkowska (Kopernik), Johanna Cunningham (United Nations Development Programme), Tanja Chopra (United Nations Development Programme) and Matthew Stephens (World Bank Justice for the Poor Program). This book forms part of a wider project on legal empowerment and customary justice, and is situated within a portfolio of legal empowerment research focusing on gender, customary land titling, traditional knowledge and microfinance. 3 This publication is based on research funded by the Bill & Melinda Gates Foundation. The findings and conclusions contained within are those of the authors and do not necessarily reflect positions or policies of the Bill and Melinda Gates Foundation. Table of contents Introduction Erica Harper 11 CHAPTER 1: Bush Justice in Bougainville: Mediating Change by Challenging the Custodianship of Custom Naomi Johnstone 15 CHAPTER 2: Unlikely Allies: Working with Traditional Leaders to Reform Customary Law in Somalia Maria Vargas Simojoki 33 CHAPTER 3: Gender Equality on the Horizon: The Case of Uukwambi Traditional Authority, Northern Namibia Janine Ubink 51 CHAPTER 4: Two Faces of Change: The Need for a Bi-Directional Approach to Improve Women’s Land Rights in Plural Legal Systems Amrita Kapur 73 CHAPTER 5: Engaging with Customary Law to Create Scope for Realizing Women’s Formally Protected Land Rights in Rwanda Marco Lankhorst and Muriel Veldman 93 CHAPTER 6: Rights or Remedies? Shopping for Justice in Liberia’s Dualistic Legal System Justin Sandefur and Bilal Siddiqi 109 CHAPTER 7: Land Justice in Uganda: 5 Preserving Peace, Promoting Integration Maggie Carfield 127 CHAPTER 8: The Community Land Titling Initiative: An Investigation into Best Practices for the Protection of Customary Land Claims Rachael Knight 145 CHAPTER 9: Conclusion: Enhancing Legal Empowerment through Engagement with Customary Justice Systems Erica Harper, Ewa Wojkowska and Johanna Cunningham 171 ANNEX 1: Grant Descriptions 185 ANNEX 2: About the authors 201 Foreword by Jordan Ryan Poor access to justice is a defining characteristic of many fragile and developing countries, especially those that are also recovering from conflict. For vulnerable groups — women, children, minorities, older persons, persons with disabilities, persons infected with HIV/AIDs and displaced populations — obtaining remedies and protection of their rights can be an impossible undertaking. Obstacles include prohibitive costs, language barriers, physical isolation, cultural impediments, or simply, the absence of formal justice bodies and representation services. Where individuals succeed in accessing a court- room, they frequently find that lawyers, courts and police services lack the capacity and incentives to resolve their case fairly and equitably. Corruption and impunity may also have eroded the population’s confidence in the state’s willingness to ensure the speedy and fair administration of justice and to provide basic legal guarantees in line with human rights norms and standards. In such environments, communities and individuals often rely on customary justice systems as their principal route to a remedy. These systems, which constantly evolve as values change over time, are part of the social, cultural and political fabric of community life. As a result, they can provide timely and effective resolutions to disputes, facilitate expeditious reconciliation between parties, and also provide a framework for community-level law and order. However, some customary justice mechanisms can also be discriminatory and exclusionary, and can contribute to human rights violations. It is therefore vital that the capacity of customary institutions — just like their formal counterparts — are strengthened in order to extend protection and deliver justice. While mindful of the sensitivities of engaging with the informal or non-state justice systems, there is a growing international consensus on the importance of engaging both formal and informal or customary systems to strengthen the rule of law in a way that is contextually relevant, accessible and equitable. Against this background, the case studies in this volume offer a valuable addition to global research 6 and knowledge in this area. They provide practical
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