New studies shed light on informal justice in Africa
Although hugely important for a majority of Africans, informal justice systems remain largely understudied, especially with respect to their respect for human rights.
As part of the Research Partnership Programme at the Danish Institute for Human Rights, four reports examining various informal justice systems have now been published.
- At least 80 percent of all legal disputes in Africa are dealt with throughinformal justice systems. Even in criminal cases, their role is prominent. That means, that these systems have tremendous importance in African societies, and if African states seek a justice system that actually matters for the people, they need towork withthe informal systems, Fergus Kerrigan, expert on informal justice at the Danish Institute for Human Rights, says.
Withtheir huge importance, the informal justice systems need to be examined in relation to human rights as well. It is, after all, a human right to have access to a fair trial. And the four new reports allanalyse the informal justice systems in regards to human rights.
Cattle for homicide
Dissectinghow the Borana Oromo in Ethiopia deal with homicide coping with both the formal and informal justice systems, author Aberra Degefa Nagawofinds that the main problemwith the stateis the lack of acceptance of the well-entrenched indigenous justice systems.
In the traditional informal justice system, the perpetrator's punishment is monetised in the form of paying 30 head of cattle to the victim's family.The Borana elders consider this a constructive and necessary form of punishment compared to the formal justice system's prison sentence.
- By dismissing well-functioning informal justice systems and imposing a uniform legal system, we risk the alienation of all the people making use of the system and the loss of a diversity which needs to be cherished, Nagawo’s report concludes. Importantly, it is often not a question of choosing between one system or the other. Even after serving a prison sentence, offenders would be expected to pay compensation before being admitted back into the community.
In a Western context, cattle for homicide can seem risky and bizarre, but the informal justice systems often work in a more just way than the formal ones, Fergus Kerrigan stresses.
-The formal justice system mightlook goodon paper, but the reality in many places is that it is flawed: the system is subject to long delays, so that people are detained without trial for years. There may be corruption; Most accused don’t have lawyers to represent them, and sometimes only the prosecutor is effectively allowed to summon witnesses, especially where trials take place far from the scene of the crime. So in the end, the informal system is the one that people regard as fair, Kerrigan adds.
Sexual abuse in the family
It is not just homicide in Ethiopia that is being dissected by the African scholars.
Mercy Deche has written about legal response to intra-familial child sexual abuse in Kenya, Eva A. Maina Ayiera puts local justice mechanisms in Kenya under thorough investigation and the Kombo Mtaa mediation committee in Tanzania is the subject of Angela Daniel Ifunya's study.
All four of them are readily available for download on this page.