Courting Custom: Regulating Access to Justice in Rural South Africa and Malawi

By Ubink, Janine; Weeks, Sindiso Mnisi | Law & Society Review, December 1, 2017 | Go to article overview

Courting Custom: Regulating Access to Justice in Rural South Africa and Malawi


Ubink, Janine, Weeks, Sindiso Mnisi, Law & Society Review


Recent decades have demonstrated the continued relevance of customary law for the regulation of the lives of Africa's citizens. Most of these citizens navigate family relations, access to natural resources, and settlement of disputes through customary law as administered by family heads, elders, and traditional leaders. The state legal system is often a much less direct instrument of governance in their lives. Statutory laws are less well known, state courts harder to access, and attempts to enhance knowledge, access, and preeminence of state law institutions have often had limited impact. As a result, recent decades have witnessed a reevaluation of customary justice systems and a resurgence of traditional leadership (Englebert 2002: 51-64; Mnisi Weeks 2015; Oomen 2005: 1-9; Ubink 2007; Ubink and Van Rooij 2011).

The prevalence and relevance of non-state justice systems pose serious governance challenges to sovereign states. How to effectively govern a country where each locality has its own norms, leadership structures, and dispute settlement institutions; where many relations and rights are regulated by customary law? This partly is a question of which customary rights, positions, and entitlements to recognize, but also of which fora will have the power to decide on such issues. This article focuses on the latter question, and discusses two different approaches taken by African countries to the challenges their governments discern in regulating customary dispute settlement.

In the first approach, the government recognizes or formalizes the highest level or levels of traditional dispute settlement institutions. Thus formalized, these customary courts-operating under various names such as traditional courts, customary courts, or community courts-may for instance, be permitted to make use of the state machinery for the enforcement of their summons, decisions, and sanctions. At the same time, formalized customary courts may be required to administer justice in accordance with certain procedural and substantive standards. Parties that are dissatisfied with customary courts' decisions can appeal at least some of these decisions to state courts. This opens up possibilities for state courts to oversee the adjudicative work of customary courts, as well as for the development of checks and balances that can ensure adherence to procedural and substantive standards. Such a system has for instance, been introduced in Namibia (Peters and Ubink 2015), Botswana (Kumar 2009), and Nigeria (Bello et al. 2009; Okafo 2009).

Success of this approach depends on the responsiveness of customary courts to the new standards; whether citizens will find their way to state courts; the extent and manner in which state courts undertake their role as checks on customary courts, and the extent to which state court decisions impact customary administration and dispute settlement. Related concerns are whether formalization gives too much power to traditional leaders, for instance in the field of sanctioning, and whether it inhibits citizens from opting out of the customary justice system, which can be particularly detrimental to the position of minorities and women. These worries are compounded by the fact that customary courts often do not allow legal representation.

A second approach found in African countries is to opt for some kind of hybrid institution that combines characteristics of regular state courts and customary fora to be the main avenue of customary law cases. These hybrid courts are presided over by lay judges, with or without strong ties to local traditional authorities; they apply customary and statutory law and make use of simplified procedures and local language. They can have recourse to the state machinery for enforcement and appeals go to regular state courts. This type of court is meant to enhance community members' participation in and access to the state judicial system while diminishing the caseload of regular state courts. …

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