Working with legal pluralism

Donors find it difficult to work across multiple layers of security and justice provision, assessing the complex power relationships and understanding the political risks at all levels (Albrecht & Kyed, 2010; OECD, 2010), but engagement across all of these levels and particularly with non-state actors is important (Baker, 2010). Addressing this challenge requires a degree of compromise; support for state, local and non-state actors must be linked; and improvements in local service delivery and efforts to improve state functioning occur in conjunction with each other (Derks, 2012).

A common perception is that non-state actors are human rights violators, are involved in corrupt practices or have criminal connections. However, state actors can also violate human rights, and the provision of security and justice at all levels can be discriminatory against women (Albrecht & Kyed, 2011; Denney & Domingo, 2013). The UNDP (2012, p.97) state that a lack of human rights compliance by non-state actors is no reason in itself for donors not to work with them, anymore than it is a reason not to work with a failing state justice system. A key consideration is whether engaging with non-state actors will strengthen the overall protection of human rights, as part of a gradual process of change. Experience suggests that non-state actors are amenable to change and can improve their practice with regards to protecting the rights of women and vulnerable groups (Scheye, 2009).

Challenges

Competing interests: Security and justice providers at different levels have differing interests, with competition over power and resources (Albrecht & Kyed, 2010). Recipient governments can interpret donor security and justice assistance as foreign intervention in domestic matters, and may particularly oppose support for non-state actors. Donor support for non-state actors may risk duplication of efforts or intensifying power struggles (Derks, 2012).

‘Doing more harm’: It is important to avoid short-term interventions that create dependency or risk damaging functioning systems without ensuring that something better replaces them (UNDP, 2012). Support to non-state actors risks overwhelming small-scale actors with funding and reporting requirements. Donors often prefer to support large-scale initiatives, which can be counter-productive if applied to small-scale organisations (Derks, 2012).

State-to-state engagement: Donors are most often mandated to work through state bodies, which inhibits their ability to look beyond state security and justice provision (Isser, 2009).

Donor risk aversion: An increased focus on value for money in donors’ home countries means that they might not be willing to support a range of providers because it is perceived as risky behaviour or too experimental (Albrecht & Kyed, 2011).

Approaches

Political dialogue: Donors can facilitate change through political negotiation with recipient governments and other actors. This requires not treating state and non-state actors as discrete categories, and focusing on ways of better linking the variety of security and justice providers at all levels (Albrecht & Kyed, 2010).

Local analysis and knowledge management: Addressing the risks and challenges in upsetting local power balances requires investments in local analysis including an examination of the political economy at the micro-level (Albrecht & Kyed, 2010).

Addressing concerns in donors’ home countries: It is important to establish a communication strategy in donors’ home countries to raise the awareness of the advantages of a multi-layered approach (Albrecht & Kyed, 2010).

Lessons from working with community-based justice mechanisms in Helmand, Afghanistan

The legal systems in Afghanistan include: codified national law, Shari’a law, tribal codes and customary practices. Dispute resolution occurs through a myriad of relationships that link state, local and non-state actors.

Beginning with a pilot project in 2008, the UK-led Provincial Reconstruction Team (PRT) adopted a ‘one system, two sector’ approach. This was based on the principle that providing ways for the community to engage with the state on justice issues can help build trust and enhance the legitimacy of the government. The Afghan Social Outreach Programme (ASOP) established Community Councils in all districts. As part of this, Justice Sub-Committees were created to assist with cases that community elders had been unable to resolve at the community level. The Prisoner Review Shuras (PRS), which included security agency and local community representatives, were established to compensate for the absence of district prosecutors, and their purpose was to ensure that arrests and detentions are based on evidence and that pre-trial detentions did not extend beyond legal limits.

Key lessons learned

Acknowledge that justice is local: The aim should be to identify what works, what does not work, and why. Engagement with community leaders on basic legal principles can improve the quality of processes and access to them, particularly for women.

Build accountability into interventions from the outset: Donors should build on power structures that match community needs but avoid supporting emerging power-holders whom the community does not support. Monitoring and evaluation mechanisms should be put in place to prevent the misappropriation of resources by community members.

Encourage linkages: Linkages that exist between state and community-based justice actors help build legitimacy of both state and non-state actors. Understanding these existing linkages is central to identifying how they may be enhanced.

Use local attitudes as a starting point for human rights protection: Improving respect for human rights is a process of cultural change and should be founded on the moral codes and cultural practices of the community in question. Discussing rights with community leaders requires a language that resonates and an approach that situates these rights in the local context.

Harness the potential of women: Community-based justice can work for women and they can influence community-based justice actors. It is possible to work directly with women, but it must be done at their own pace to avoid the risk of retribution or ostracism.

Adapted from Nielsen (2011)

Tools and guidance

  • The g7+ New Deal for Engagement in Fragile States (New Deal) (see, IPDS, n.d.)
  • The State’s Legitimacy in Fragile Situations: Unpacking Complexity (see OECD, 2010)
  • Supporting Statebuilding in Situations of Conflict and Fragility: Policy Guidance (see OECD-DAC, 2011)
  • DFID Briefing: Non-state Justice and Security Systems (see DFID, 2004)
  • DFID Practice Paper: Building Peaceful States and Societies (see DFID 2010a)
  • Customary Justice: From Program Design to Impact Evaluation (International Development Law Organisation) (see Harper, 2011)
  • Informal Justice Systems: Charting a course for human rights-based engagement (see UNDP, 2012)
  • Albrecht, P. & Kyed, H.M. (2010). Justice and security – when the state isn’t the main provider. DIIS Policy Brief, December 2010. Copenhagen: Danish Institute for International Studies.
    See document online
  • Albrecht, P. & Kyed, H.M. (2011). Introduction: Non-state and Customary Actors in Development Programs. In P. Albrecht, H. M. Kyed, D. Isser & E. Harper (Eds.), Perspectives on Involving Non-State and Customary Actors in Justice and Security Reform. Rome: International Development Law Organisation / Danish Institute for International Studies.
    See document online
  • Baker, B. (2010). Linking State and Non-State Security and Justice. Development Policy Review, 28(5), 597-616.
    See document online
  • Denney, L. & Domingo, P. (2013). A problem-focussed approach to violence against women: the political-economy of justice and security programming. London: ODI.
    See document online
  • Derks, M. (2012). Improving security and justice through local/non-state actors: The challenges of donor support to local/non-state security and justice providers. The Hague: Clingendael.
    See document online
  • DFID. (2004). Non-state Justice and Security Systems. DFID Briefing May 2004. London: Department for International Development.
    See document online
  • DFID. (2010a). Building Peaceful States and Societies: A DFID Practice Paper. London: DFID.
    See document online
  • Harper, E. (2011). Customary Justice: Program Design to Impact Evaluation. Rome: International Development Law Organisation.
    See document online
  • IPDS. (n.d.). A New Deal for engagement in fragile states. International Dialogue on Peacebuilding and Statebuilding.
    See document online
  • Isser, D. (2009). Re-thinking Legal Pluralism and the Rule of Law in Post-Conflict and Fragile Countries. Paper presented at the USIP Conference on Customary Justice and Legal Pluralism in Post-Conflict and Fragile Societies, George Washington University, Washington D.C.
    See document online
  • Nielsen, M.L. (2011). From Practice to Policy and Back: Emerging Lessons from Working with Community-Based Justice Mechanisms in Helmand, Afghanistan. In P. Albrecht, H. M. Kyed, D. Isser & E. Harper (Eds.), Perspectives on Involving Non-State and Customary Actors in Justice and Security Reform. Rome: International Development Law Organisation / Danish Institute for International Studies.
    See document online
  • OECD. (2010). The State’s Legitimacy in Fragile Situations: Unpacking Complexity. Paris: OECD.
    See document online
  • OECD-DAC. (2011). Supporting Statebuilding in Situations of Conflict and Fragility: Policy Guidance. DAC Guidance and Reference Series. Paris: OECD.
    See document online
  • Scheye, E. (2009). Pragmatic Realism in Justice and Security Development: Supporting Improvement in the Performance on Non-State/Local Justice and Security Networks. The Hague: Clingendael.
    See document online
  • UNDP. (2012). Informal Justice Systems: Charting a course for human rights-based engagement. New York: United Nations Development Programme.
    See document online