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Customary Justice: Perspectives on Legal Empowerment

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Customary Justice: Perspectives on Legal Empowerment LEGAL AND GOVERNANCE REFORM: LESSONS LEARNED . No. 3 /2011 Customary Justice: Perspectives on Legal Empowerment Janine Ubink, Editor Thomas McInerney, Series Editor Customary Justice: Perspectives on Legal Empowerment Janine Ubink, Editor Thomas McInerney, Series Editor Customary Justice: Perspectives on Legal Empowerment 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. 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. 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 purpos- es, 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 in conjunction with Viale Vaticano, 106 the Van Vollenhoven Institute, University of Leiden 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 978-88-96155-06-6 Table of contents Foreword by Thomas F. McInerney 5 CHAPTER 1: Towards Customary Legal Empowerment: An Introduction Janine Ubink, Benjamin van Rooij 7 CHAPTER 2: Engaging with Customary Justice Systems Erica Harper 29 CHAPTER 3: Customary Legal Empowerment: Towards a More Critical Approach Ross Clarke 43 CHAPTER 4: Reducing Injustice? A Grounded Approach to Strengthening Hybrid Justice Systems: Lessons from Indonesia Samuel Clark and Matthew Stephens 67 CHAPTER 5: Policy Proposals for Justice Reform in Liberia: Opportunities under the Current Legal Framework to Expand Access to Justice Amanda C. Rawls 91 CHAPTER 6: Ensuring Access to Justice through Community Courts in Eritrea Senai W. Andemariam 113 CHAPTER 7: Stating the Customary: An Innovative Approach to the Locally Legitimate Recording of Customary Law in Namibia Janine Ubink 131 CHAPTER 8: Interaction between Customary Legal Systems and the Formal Legal System of Peru Ellen Desmet 151 3 CHAPTER 9: Negotiating Land Tenure: Women, Men and the Transformation of Land Tenure in Solomon Islands Rebecca Monson 169 Message from the Director of Research, Policy & Strategic Initiatives, IDLO Rule of law practitioners from around the world are keenly aware that customary justice systems are a potentially important means of improving access to justice. Whether by choice or because they have no alternative options, the world’s poor overwhelmingly favor customary justice systems over their formal counterparts. While the quality and equity of the outcomes delivered may vary, the sheer volume of outcomes suggests that there is significant opportunity to enhance legal empowerment by improving the quality of the justice processes that disadvantaged individuals and communities already use. At the same time, it is clear that customary justice systems can also restrict access to justice, particularly for marginalized and vulnerable groups. These processes can reinforce power imbalances, and outcomes can contravene human rights and justice standards. A central conundrum of engaging with customary justice systems is therefore how to support their many important positive aspects and enhance their capacity to protect the human rights of the most vulnerable members of society, notably women, minorities, indigenous peoples, disabled people and children. Despite these obvious linkages, the question of the role that customary justice systems should play in rule of law development programming remains poorly understood. In particular, there is scant knowledge on the extent to which assistance has translated into behavioral change among actors involved or on methodologies for evaluating impact and drawing lessons for future activities. This volume stems out of a broad IDLO research program featuring activities in Namibia, Rwanda, Somalia, Tanzania, Mozambique, Papua New Guinea, Liberia and Uganda, aimed at expanding the knowledge base regarding the relationship between the operation of customary justice systems on the one hand and the legal empowerment of poor and marginalized populations on the other. The volume, featuring articles by leading authors, country specialists and practitioners working in the areas of traditional justice and legal empowerment, discusses key aspects of traditional justice, such as for example the rise of customary law in justice sector reform, the effectiveness of hybrid justice systems, access to justice through community courts, customary law and land tenure, land rights and nature conservation, and the analysis of policy proposals for justice reforms based on traditional justice. Discussions are informed by case studies in a number of countries, including Liberia, Eritrea, the Solomon Islands, Indonesia and the Peruvian Amazon. 5 I wish to express my gratitude to Janine Ubink and to all the contributing authors who have made this volume possible. A special thank you goes to the IDLO staff who has worked very hard on this project over the past year, including Ilaria Bottigliero (Senior Researcher), Francesca Pispisa (Communications Officer) and Georgina Penman (Editing Consultant). Thomas F. McInerney International Development Law Organization Chapter 1 Towards Customary Legal Empowerment: CHAPTER 1 An Introduction 1 Janine Ubink, Benjamin van Rooij* n the last few decades, tradition, or at least what has always been portrayed as such, has proven resilient, and in many countries, customary justice systems1 have returned to the fore. Africa is a prime example of where chiefs and customary justice systems continue to dominate or made a Icomeback in the last decades.2 Also, in many Asian and Latin American countries, customary justice systems are vital. See for instance the role of adat in Indonesia;3 the Lok Adalat tribunals in India;4 and the disputes over recognition of customary indigenous group rights in Bolivia or Columbia.5 Customary justice systems even play a role in Northern America and Australia, where there have been intense struggles surrounding the recognition of ‘native’ group rights.6 Over the last decade or more, customary justice systems have become an increasing priority for international organizations working in legal development cooperation.7 Examples include support for the re-constitution of Gacaca courts to deal with the immense number of suspects of the Rwandan genocide,8 and projects aimed at bridging customary and state tenure systems to try to capitalize on customary land resources following the influential work of Peruvian economist Hernando de Soto.9 Other examples are development projects that seek to improve the position of women in customary settings, for instance, through changes in national legislation governing customary law, legal awareness training, or local level civil society engagement by paralegals.10 How can this interest
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