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Non-state Institutions as a Basis of State Reconstruction: The Case of Justice Systems in Africa

Author: Leah Wambura Kimathi
Date: 2005
Size: 20 pages (100 KB)

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Summary

How can non-state justice institutions further the process of state reconstruction in Africa? This paper from the Catholic University of Eastern Africa discusses the way in which the state can be made more responsive by incorporating non-state institutions in formal state structures. It argues for a synergy of formal and informal justice systems to enhance the advantages and minimise the disadvantages of each. Measures to improve non-formal justice should be pursued alongside efforts to decentralise and streamline formal justice structures.

Many African states have come to be considered alien constructions by their citizens. Meanwhile, traditional legal systems remain central to the organisation of society in large parts of Africa, particularly in rural areas. The formal state institutions ignore the practices of traditional systems but could benefit from their knowledge and understanding. In addition, non-state traditional systems could be brought up to date while still responding to the specific needs of communities. 

The persistence of the popularity of non-formal systems as a means of settling disputes can be explained by the failure of governmental structures inherited from the colonial state. Informal justice mechanisms overcome the obstacle of access to justice for many who are denied access to formal systems because of language, cost and location. Further findings are that:

• Traditional justice mechanisms are conducted and enforced by people who are socially important to litigants.
• Informal systems discriminate on the basis of age, gender, social status and family circumstance and lack harmonisation and strong links to other relevant formal institutions.
• Traditional systems have suffered from politicisation and corruption which risk delegitimising their processes.
• The context of the particular country will dictate the extent to which traditional and informal systems can be incorporated into formal systems or remain voluntary dispute resolution forums.

The formal state must develop and maintain equilibrium in conventional politics between itself and traditional leaders. In rural Africa land is largely held in trust by the traditional authorities, and their role is especially important due to the many conflicts arising out of land use. Further recommendations include the following:

• Incorporating traditional systems into modern conflict resolution efforts will help to mitigate the effects produced by the perception of international assistance as foreign intervention akin to recolonisation.
• Efforts to incorporate traditional systems should facilitate the participation of local people who are otherwise left out of peace processes.
• Weaknesses of traditional systems, such as discriminatory practices, should be recognised and efforts should be made to modernise systems in line with people’s lives.
• When the state incorporates or sanctions customary norms, it still has a constitutional obligation to uphold norms such as equality and non-discrimination.
• Efforts should be made to combine the formal legal concepts and institutions such as arbitration and mediation with traditional ones that are intended to achieve reconciliation. This would work well with lower courts and the non-state institutions.

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Source: Kimathi, L. W., 2005, 'Non-state Institutions as a Basis of State Reconstruction: The Case of Justice Systems in Africa', Paper presented at CODESRIA's 11th General Assembly, 6-10 December, Maputo, Mozambique.