Traditional justice institutions
Can they be more effective?

Traditional justice institutions range from largely invisible intra-family negotiations to quasi-state bodies that apply customary norms to resolve disputes and allocate resources. What are their strengths and weaknesses and what reforms could improve access to justice?

Strengths

Informal dispute resolution processes play a central role in rural sub-Saharan Africa, particularly in eastern Kenya. In general, traditional justice institutions are more affordable, accessible and less intimidating than formal courts. Widely accepted as an alternative way to resolve family conflict, they have a lower 'social cost' than taking one's relatives to court. In practical ways, they protect the vulnerable, giving legal force to claims or rights that formal laws fail to recognise. A key example is the upholding of 'overlapping rights' between registered and undocumented claims to land. Formal courts more often than not dismiss the claims of all but the registered title-holder.

Traditional justice institutions can be responsive to the varied and dynamic nature of local custom, practice and opinion. This variation offers grounds for challenging the use of cultural abstractions to exclude and subordinate certain groups. Attempts to systematically collect and organise customary law have led to 'customary rules' becoming more rigid, as reflected in judicial decisions that perpetuate inequalities justified as cultural.

It is recommended that:

• Reform should refrain from the impulse to codify and make uniform customary law, as this could endorse only dominant versions, without necessarily meaning to.
• Making the complex and varied contemporary practices of custom visible to official fora is vital in efforts to reform traditional justice institutions.

Weaknesses

Differences in wealth, social status, gender and family circumstances can affect people's experience of local justice. There are few or no avenues to check discrimination or abuse. This is a direct result of an official failure to acknowledge that these fora exercise quasi-judicial functions. In some places, the structures are loose and diffuse (for example, intra-family mediation), which makes routine accountability difficult. Injustices can only be brought to the surface if dissatisfied people take the initiative to raise them.

Intra-family disputes make up the majority of informal disputing at the local level (one-third in the eastern Kenya case study). While not all decisions go against the interests of women, embedded ideas about authority within the family can lead to this bias. In land relations, for example, men are regarded as having the main authority to negotiate and finance the purchase of land. Even where women who have exercised such authority try to establish their land rights, embedded ideas are used to discredit their claims altogether.

Approaches to reform

Research in Kenya and elsewhere shows that reform aimed at accessible justice is possible:

• Successful reform strategies are likely to be those that build on existing strengths and redress obvious weaknesses. One entry point is where there is already recognition of the need for change by the very people who are the 'caretakers' of the institutions.
• Experience has shown, however, that some changes (for example, to permit gender equity) are less likely to be approved from within the system. The state has a direct role to play here: when the state incorporates or sanctions customary norms, it still has a constitutional obligation to uphold norms such as equality and non-discrimination.

Celestine Nyamu-Musembi
Institute of Development Studies
University of Sussex
Falmer
Brighton BN1 9RE
UK

T +44 (0)1273 606261

c.nyamu@ids.ac.uk

See also
'Why Engage with Local Norms and Institutions? The Case of Women's Property Rights in Rural Kenya', East African Journal of Peace & Human Rights, by Celestine Nyamu-Musembi, forthcoming

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