Development programmes must engage informal justice systems, UN study says
Human rights, access to justice for all must play central role
New York — Informal or traditional justice systems resolve up to 80 percent of disputes in some countries and must be integrated into broader development initiatives aimed at guaranteeing human rights and access to justice for all, according to a new UN study released today.
Informal justice systems (IJS) “may be more accessible than formal mechanisms and may have the potential to provide quick, relatively inexpensive, and culturally relevant remedies,” with particular impact for women and children, the study, Informal Justice Systems: Charting a Course for Human Rights-Based Engagement, says.
The 400-page report, commissioned by the UN Development Programme (UNDP), UNICEF, and UN Women and produced by the Danish Institute for Human Rights, is the most comprehensive UN study on this complex area of justice to date. It draws conclusions based on research in Bangladesh, Ecuador, Malawi, Niger, Papua New Guinea, Uganda, and 12 other developing countries.
“Informal or customary justice systems are a reality of justice in most of the countries where UNDP works to improve lives and livelihoods and government capacities to serve,” UNDP Assistant Administrator and UN Assistant Secretary-General Olav Kjorven said. “The evidence in this report illustrates the direct bearing such systems can have on women and children’s legal empowerment, covering issues from customary marriage and divorce to custody, inheritance, and property rights.”
“There has been little research or literature on children and IJS to date, and this study is important in beginning to document the issues around children’s engagement with informal Justice Systems," Susan Bissell, UNICEF Assistant Director, Child Protection Section, said. "Reconciling the procedures followed by IJS with children’s rights, and ensuring that international standards about children and justice are implemented in IJS, is a challenge that the report clearly documents.”
"At the same time, the report also shows that IJS can be useful as a means of avoiding formal prosecution of children, and can be responsive to changing cultural attitudes about children and justice.”
Both formal justice systems—government-supported laws, police, courts, and prisons—and informal or traditional systems can violate human rights, reinforce discrimination, and neglect principles of procedural fairness. “The efficacy of working with informal justice systems requires that it be complemented by engagement with the formal justice system and with development programming that addresses the broader social, cultural, political, and economic context of IJS,” the report says.
- In Somalia, UNDP’s engagement with customary authorities followed failed attempts to support mainstream rule of law institutions in Somaliland, which favoured a state-centred approach amid armed conflict, even as government institutions were failing. After a survey found up to 80 percent of the population preferred arbitration by clan leaders, a new strategy used women’s access to justice as an entry point for engagement—bringing in women’s organizations with more legitimacy and capacity than any formal institutions.
- In Papua New Guinea, UNICEF works with the Village Courts Secretariat within the Ministry of Justice to establish national training documentation, referral, monitoring, and evaluation systems for village court judges and officers. This encompasses children’s and women’s rights and other constitutionally guaranteed rights and juvenile justice instruments.
- In Bangladesh, the Ministry of Local Government Division, UNDP, and the European Commission are launching a programme known as “Activating Village Courts in Bangladesh,” which supports the justice system in 500 localities, including by raising awareness about the roles and functions of village.
- In Aceh, Indonesia, UNDP works closely with the Aceh Customary Council, to strengthen the capacity of traditional (adat) leaders to professionally handle and administer cases.
- In Swaziland, traditional courts reach more than 50 percent of those seeking recourse and tend to be used by marginalized groups who cannot afford access to modern courts. Since 2004, UNDP has worked with the national and customary courts to strengthen the roles of adjudicators, with a focus on gender, human rights, contemporary social issues, and the Constitution.
The study called for special focus on vulnerable groups that are under-represented in traditional justice systems, such as women, children, and minorities.
Where formal justice mechanisms are inoperative or inaccessible to ordinary people, informal justice systems "may be better placed to achieve the principles of impartiality, accountability, participation, and protection of substantive human rights," the report said.
"The best access to justice and protection of human rights will be afforded when the different systems and mechanisms, formal and informal, are allowed (a) to exchange with and learn from one another, (b) to cooperate with one another, (c) to determine the best division of labour, guided by user preferences as well as state policy imperatives, and (d) to develop in order to meet new challenges."
Discriminatory practices regarding marital and family relations, property ownership, and inheritance, or superstitious practices and punishments “are not simply expressions of justice standards, but are expressions of how societies are structured,” it said. “The best ways to change this may include broader development initiatives in education, livelihoods and public health. Broader development initiatives are also key to creating an environment where human rights can be respected and fulfilled.”
- While dowry payments have been legally abolished in some countries, including India and Bangladesh, dowry disputes still frequently arise in these and other countries through informal justice systems. Uganda’s non-governmental organization MIFUMI has made bride price a campaign issue, having worked on it for years using advocacy and strategic litigation.
- Public hearings can promote enforcement of IJS decisions, including through ensuring publicity for such hearings. The Shalish courts in Bangladesh use a highly public forum for decision-making and publicising case outcomes. Recording of decisions occurs among community members, whose collective conscience is committed to enforcement.
- In Eastern Highlands and Simbu provinces of Papua New Guinea, numerous communities have resolved communal conflicts through their own peace-restoring and dispute-resolution fora. In Kup district of Simbu province, women united to fight the communal violence killing their husbands and sons and causing women and girls to live in fear of physical or sexual assault, founding an NGO, Kup Women for Peace.
- Informal justice systems can comprise recognition of children’s right to be heard. In Ecuador, in IJS cases within the family, children are generally represented by a family member who speaks for the child’s interests.
- In some countries, the state has exercised leverage over selection of traditional leaders. In South Africa, the law requires that 40 percent of traditional council members must be democratically elected and 33.3 percent must be female.
- In Bangladesh and Malawi, NGOs gained access to traditional IJS by providing support and obtaining the trust of the leaders and communities.
“The crucial value in this report lies in its emphasis on what can be achieved in terms of improving access to justice and human rights through informal systems,” Mr. Kjorven said. “Changes should be evaluated over the long term, but training adjudicators, increasing the number of women in decisions-making posts, empowering paralegals and women’s groups to monitor and engage with customary leaders—all these efforts will continually improve individual and communal experiences of justice.”
"States have an obligation to make efforts to ensure that IJS respect the rights of children, and the study found some examples of such efforts,” Ms. Bissell said. “In South Africa, the law reform commission carried out research on the compatibility of customary law with the rights of children before deciding the extent to which legislation would recognize customary law. in Bangladesh, legislation bans the application of corporal punishment by IJS."
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