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Key Text Non-State Justice Systems in Latin America. Case Studies: Peru and Colombia

Author: J Faundez
Date: 2003
Size: 87 pages (275 KB)

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Summary

Do non-state justice systems (NSJS) enhance or undermine poor people's access to justice? Can they complement formal state justice and governance systems? This paper by the University of Warwick analyses NSJS in rural Peru and urban Columbia.

NSJS are adopted in response to the failure of the state to provide adequate systems of justice and governance. The relationship between NSJS and the state is an uneasy one. In rural areas, there are language barriers to overcome, as well as physical and geographical barriers. Distrust between urban community groups and government impedes efforts to establish formal or non-state systems. Legislation regulating NSJS can be complex, inadequate, unclear, or even contradictory. For example, Rondas Campesinas in rural Peru have had great successes in controlling crime, but many Ronda members have been sent to jail for usurping the functions of the police and judiciary. NSJS's interaction with official systems goes beyond conflict resolution and mediation to encompass broader governance issues in both urban and rural contexts. Where government or local elites detect that NSJS have a governance role, they try to co-opt, influence or repress them. If they are viewed as purely legal institutions, they are rejected. Key findings are:

NSJS are more "home-grown" in rural communities, have more grass-roots ownership, and work better.
However, rural NSJS can be co-opted or established by paramilitary groups to further their political and military ends. This contributes to the negative image of NSJS by officialdom.
In urban shanty towns, there is a lack of community cohesion and unity. NSJS tend to be imposed by the state or local NGOs with donor assistance and are often resisted. Community mobilisation is more important to community leaders than conflict resolution mechanisms.
Whereas conciliation, harmony, and restorative justice are indigenous rural cultural norms, in urban settings these values are imposed and often resented.

NSJS are very diverse. Much more research is needed to understand them, their impacts, and their complex interrelations with government. Policy makers must take into account the wider governance context of NSJS, not just legal or conflict resolution factors. NSJSs have a political role, and are not primarily or exclusively concerned with the law. Donors and government should not design interventions for NSJS in isolation. As they are a people's response to the absence of adequate state institutions, engagement with NSJS should also incorporate programmes to reform state legal and justice systems. In designing and implementing programmes that engage with NSJS:

The Office of the Ombudsman provides a useful link between the state and NSJS.
Training in human rights has been effective in moving NSJS away from abuses.
The legal profession is generally hostile to NSJS. Workshops with them and with other professionals (such as social workers) are necessary to promote better understanding.
Involving local NGOs and civil society in programmes is good, but caution must be exercised to avoid becoming entangled in local conflicts.

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Source: Faundez, J., 2003, 'Non-State Justice Systems in Latin America. Case Studies: Peru and Colombia', Paper prepared for the DFID Workshop on "Working with Non-State Justice Systems", 6-7 March 2003