Throughout much of Africa, women and other marginalized groups in rural areas are in a tricky situation when it comes to justice. For the most part, formal legal systems in African countries, typically based on colonial and post-independence legislation, protect the rights of marginalized groups, such as the right to inherit property or to participate equally in the local economy. But when two or more parties in rural areas seek to formalize a relationship or resolve a dispute, geographic isolation and limited government resources often prevent them from taking advantage of formal legal systems, such as their local courts or administrative tribunals.
Instead, in rural areas across Africa, most cases are decided or addressed through customary forums and through customary law—the practices and customs in communities that are accepted as rules by community members. Customary law is highly variable across communities, regions, and ethnicities, and indeed has long been influenced and even distorted by the political and administrative contexts in which communities functioned during the colonial era. Today, customary law continues to rely on more traditional and patriarchal norms, and thus has the effect of disadvantaging women and marginalized clans or other groups.
Nearly two-thirds of Africa’s 54 countries have dualistic legal systems in which both formal and customary systems play a role in resolving disputes. This is especially common in such areas as family law and land disputes. The bifurcation of country legal systems produces inconsistencies in the rule of law and perpetuates inequitable access and application of justice in many African nations.
Complete reliance on one system without the other is not a viable solution. Formal courts are typically located in or near city centers, making access to them expensive and difficult for Africa’s more remote populations to navigate. Furthermore, many individuals in rural regions prefer resolution in customary legal forums because they understand customary practices better and hold more trust in decisions made by local tribal chiefs or elders than in local judges. Despite these preferences, access to justice often remains inequitable for women, minority tribes or clans, and other marginalized populations due to the patriarchal norms that shape customary law.
Given these factors, both formal and customary legal systems are helpful to provide access to justice across all populations, rural and urban. But when more equitable formal legal systems are largely inaccessible to rural populations, and customary systems provide access but not equity, what practices can create cohesion between the two?
Cohesion between formal and customary legal systems cannot occur without support from the community and its leaders. Community members and leaders must have the desire to increase access to justice, a commitment to incorporating formal practices, and involvement in the reform process. For example, through the support of communal leaders, some customary legal systems in Somalia have been successfully reformed to incorporate formal approaches that increase the protection of human rights and equitable access to justice. To initiate the desired reform, communal elders opened dialogue with the formal legal system and released a National Declaration, promising to reduce communal-based retribution and allow formal courts to resolve cases regarding serious crimes such as murder and rape.
Since the National Declaration, there has been an increase in elders referring cases to formal courts and a decrease in clans protecting perpetrators of crimes, allowing victims to receive the justice they deserve. Furthermore, due to the initiative and desire of communal elders, rural populations viewed changes as legitimate and sustainable, allowing the bottom-up reforms to effectively create cohesion between the formal and customary systems.
With communal traditions permeating customary systems of dispute resolution, customary tribunal decisions are often influenced by clan membership and centered on punishment rather than dispute resolution. Furthermore, the patriarchal nature of customary systems makes that approach less accessible to women and marginalized populations. Mediation in customary systems would allow customary tribunals to incorporate the formal system’s more individualistic decision-making process, rather than relying on clan or communal affiliation. Mediation entails enlisting an impartial third party to help navigate a dispute, including by engaging specialized communication and negotiation techniques that allow the parties to actively reach a solution together. By educating and training members of the community, including women, in mediation tactics, customary courts can resolve issues in less retributive ways and increase access to justice for women and marginalized populations.
According to UNDP, a mobile court is a formal court that conducts proceedings outside of its home office, often in remote locations. Particularly in the criminal law context, mobile courts travel to regions where crimes have been perpetrated to resolve cases that cannot readily access distant formal courts. By eliminating the hardship and expense of travelling miles to reach the nearest formal court, mobile courts effectively increase equitable access to the formal justice system for rural populations. Furthermore, by increasing access and visibility of the formal justice system, mobile courts educate rural populations on the practices and processes of the formal justice system. This in turn creates higher trust in formal systems, making rural populations more likely to supplement the customary system with the formal in certain instances.
For example, the Democratic Republic of Congo (DRC) has utilized mobile courts for major trials involving killings executed by warlords in rural regions. Additionally, rural populations can substitute formal mobile courts for customary courts in certain cases involving women and children to ensure equitable access to, and application of, justice. For cases involving sexual violence, mobile courts are used in the DRC to provide victims a more comfortable forum without stigmatization when seeking justice. In Uganda, mobile courts have been utilized to establish a “child responsive” system that enacts justice aimed at deterring and reforming juveniles involved in criminal cases.
Finally, to create cohesion between customary and formal systems of law and achieve equitable access to justice, governments and communal leaders need systems and institutions—accountability mechanisms—to ensure that they implement each of the aforementioned practices. Without these mechanisms, there is no assurance that reforms will be used. To be effective, accountability mechanisms should encourage reform at the local level, rather than enforce top-down approaches. Such accountability mechanisms can include: incorporating tangible goals in communal leaders’ declarations of customary system reforms; establishing paralegal offices in villages to assist in mediation education, training, and implementation; and increasing civic awareness and participation in order to hold government and communal officials accountable.
By creating cohesion between the two systems, customary tribunals can continue providing rural populations with access to and trust in the rule of law, while adopting formal practices that assure the equitable application of justice for women and marginalized populations.