I’m a member of that generation of scholar-practitioners who was present when customary justice programming was dismissed as not ‘real’ justice work. I can vividly recall a former boss telling me that “at [organization to remain unnamed], the only justice system is the formal one, and playing in the jungle should be left to the NGOs”. This sat uncomfortably with me, not only because of her shameful lack of nuance and elitism, but because it instinctively contradicted my field experience.
I didn’t need to remain sullen for long. Things were changing rapidly. The ‘business as usual’ model of justice sector reform was being increasingly scrutinized for its expense, sluggish pace and impact improving institutional functionality and access to justice. Actors were transitioning towards a ‘thicker’ conceptualization of the rule of law, and within this framework, the state was not the only or even the main justice player.
The result has been a bourgeoning customary engagement, along with a debunking of the few lingering arguments purported by skeptics such as my former boss. Today, few scholar-practitioners would contend that high use of customary processes is exclusively symptomatic of poor access to courts; quite often, it’s a reasoned choice, linked to speed, cost-effectiveness and cultural relevance. Moreover, the idea that custom institutionalizes sub-standard justice have been set aside for greater pragmatism. UNDP has called out the illogic of not engaging the structures that mete out justice most frequently. The thinking now is that there may indeed be a two-track system, but in a context where the effectiveness of reforming the formal sector is seriously questioned, improving this reality, rather than trying to replace it, makes the most sense.
But let’s not be too quick to pat ourselves on the back. Scratching beneath the surface, it seems that apart from targeting the informal rather than the formal sector, the entry points do not differ markedly from orthodox approaches. The vast majority of programming involves training, human rights compliance and formal court access. The risk is that these interventions will similarly fall short in terms of impact — not because they are technocratic in form — but because they still fail to address the principal factors impeding access to justice for the disadvantaged: key vested interests, and the multi-sectoral nature of normative change.
Justice is inherently political. The nature of the rules and how they are administered distribute power, rights and resources. In weak rule of law contexts, elites often benefit by exacting bribes, misusing power, and violating rights to maintain power and wealth hierarchies. This phenomenon is equally prevalent at the informal and formal levels. How to encourage power-holders to buy into reforms that will limit or eliminate the benefits they enjoy is an unresolved challenge, but one that is unlikely to be overcome by awareness-raising and training powerholders on the ‘right’ thing to do.
A similar illogic is in play when programs aim to eliminate practices that, although manifesting in the customary system’s operation, are not justice problems solely and exclusively. For example, to the extent that gender-biased customary adjudication is a reflection of discriminatory attitudes embedded within the wider social fabric, training, sensitization and easier court access may not be the most constructive approach. Similar outcomes accrue when the rights-abrogative practice is linked to a security, social or economic imperative. Collective punishment to resolve inter-clan retaliatory violence, and compensation for murder or sexual offences, starkly contradict accepted justice principles. But often these solutions have evolved to respond to important voids in the state-society contract, such as unregulated law and order and the absence of socio-economic safety nets.
These realities need to be acknowledged as factors that have stymied progress in access to justice, and used as a foundation to develop more strategic engagement modalities.
We might start by conceding that modifying vested or rationalized normative behavior is inherently difficult. Moreover, that where profound changes in norms have occurred, a very different formula has usually been in play, often dependent on factors that cannot be imported. These shifts, almost exclusively spearheaded by local stakeholders, typically occur as part of a steady series of vertical and horizontal power realignments followed by a catalytic shock and fast action to mobilize an idea in waiting. And before someone says ‘let me just squeeze this into a log frame’, these shifts often take generations to unfold.
This is bad news for donors and agencies as it interrupts two well-established mantras: that in the face of rights abrogative behaviors we must ‘do something’, and that people should do things for the right reasons.
I’m certainly not suggesting that programmers do nothing. I do, however, feel strongly that interventions should be evidence-based, and we must exercise restraint when interventions are not working, even if this means a pause in action to reflect and switch course. The resources are too precious and the issues too important.
So if the problem is gender-biased in decision-making, we should probably stop funneling resources into training leaders to give up a situation that works for them or counselling women on their rights under the CEDAW. Either divert resources into interventions that do have evidential backing (women’s economic empowerment is strongly correlated to better rights observance and outcomes), or work with, rather than against, the challenges posed by political economy.
One intervention with under-tapped potential is extending the dispute resolution options available, either through the state or NGOs. While the aim of such interventions is usually to make fair solutions more accessible, a secondary benefit is that competition for judicial services stimulates (often very progressive) modifications in customary processes.
Entering the workforce when I did allowed me to witness a profound transition in thinking that translated into a profound change in how things are done. So while I remain skeptical about how much change justice interventions can (and should) promote, I do know that change can happen. Today the conversation is not about whether informal or formal system is superior, but how best to promote justice, and this is a major step forward.
As donors rush to adopt informal justice policies, the next hurdle will be reconciling the tensions between access, speed and local ownership on the one hand, and strict human rights protections on the other, particularly in contexts of insecurity, meagre resources and failing safety-nets. Whether donors offer clear policy guidance may mean the difference between effective engagement or a rule of law orthodoxy repeat. Let’s hope for more change to come.