Informal Justice Systems: Charting a Course for Human - UN Women

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acKnoWleDGeMenTs acKnoWLedgements the publication was commissioned by unDP, unicef and un Women. the three agencies would like to acknowledge and thank the team at the Danish institute for human rights who conducted the research and drafted the study. the team consisted of fergus Kerrigan as team leader and editor, anne louise mcKay, annali Kristiansen, helene Kyed, lise Dahl, Paul Dalton, mie roesdahl, and nuriaVehils. contributions to the publication were also made by stephanie lagoutte, charlotte tolstrup, torsten arendrup, Katarzyna cichos, monica odheim nielsen and malene axelsen mundt. in conducting the research and drafting, the Danish institute for human rights was also assisted by a number of authors and academics in clarifying concepts, providing input and giving helpful comments on drafts, in particular anne griffiths, stephen golub and rubya mehdi. the assistance provided by ngos and academic institutions was essential to the carrying out of the qualitative and quantitative country studies including Bangladesh legal aid and service trust (Blast), fernando garcia-serrano of flacso (ecuador), Pasi (malawi), ibrahim mairiga and hadiza mahaman (Dihr, niger), sarah garap (Papua new guinea) and eleanor chemonges of fhri (uganda). the country studies were significantly assisted by the expert staff at the country offices of the three agencies, both with advice and assistance, and in their significant expertise. the report was also significantly improved through the comments and advice provided by the peer reviewers. unDP, unicef and un Women would also like to acknowledge lance garmer as copy editor of the final publication and WhatWorks, inc. for design and layout. 6 a stuDy of informal justice systems: access to justice anD human rights
summary a. pLacing informaL Justice systems in conteXt until recently, informal justice systems (ijs) were relatively invisible in development partner-assisted justice interventions. yet, ijs form a key part of individuals’ and communities’ experience of justice and the rule of law, with over 80 percent of disputes resolved through informal justice mechanisms in some countries. 1 ijs may be more accessible than formal mechanisms and may have the potential to provide quick, relatively inexpensive and culturally relevant remedies. given this central role and increasing government and partnering donor interest in ijs, it is key to build an understanding of ijs and how best to engage with them for the strengthening of human rights, the rule of law and access to justice. in many countries, there is a prevalence of ijs, which demands that governments and development partners take these systems more seriously, especially with regard to ijs and women’s and children’s rights. this does not mean that development organizations should promote ijs at the expense of a functioning unitary legal order or that they should oppose the existence of ijs. rather, it is recognition that ijs are an empirical reality, albeit a complicated one. at the same time, growing numbers of countries are requesting un assistance to engage with ijs and strengthen their ability to provide justice and legal protection. the un’s approach to engagement on rule of law and access to justice is as an effort to ensure international norms and standards for all who come into contact with the formal and informal justice system, including victims, witnesses or alleged offenders. ijs are complex and deeply varied; many drawing their normative structures and legitimacy from the local communities and society in which they operate. the un does not presume that engagement with ijs can adopt a ‘one-size-fits-all’ approach. like all legal mechanisms, ijs function within changing societies and communities and can be responsive to the particular individual circumstances of a case in the application of cultural norms. the obligation to respect, protect and fulfil human rights, including through the provision of justice and legal remedies, extends to formal and informal systems alike. Both types of justice systems can violate human rights, reinforce discrimination, and neglect principles of procedural fairness. ijs in many contexts deal with issues that have a direct bearing on the best interests of women and children, such as issues of customary marriage, custody, dissolution of marriage, inheritance and property rights. the operative questions surrounding ijs and the rights of women and children are significant. While it is especially important to note that the structures, procedures and substantive decisions of some ijs neither safeguard nor promote women’s rights and children’s rights, the existence of ijs does not of itself contravene international human rights principles. indeed, ijs can provide avenues for the delivery of justice and the protection of human rights, particularly where formal justice systems lack capacity, and ijs can enjoy widespread community legitimacy and support. the study seeks to identify how engagement with ijs can build greater respect and protection for human rights. it highlights the considerations that development partners should have when assessing whether to implement programmes involving ijs, the primary consideration being that engagement with the ijs neither directly nor inadvertently reinforces existing societal or structural discrimination – a consideration that applies to working with formal justice systems as well. the study also examines the value of ijs in offering, in certain contexts, flexible structures and processes, cost-effectiveness and outreach to grassroots communities. 1 Wojkowska, ewa 2006: How Informal Justice Systems can contribute, oslo: united nations Development Programme, oslo governance centre. a stuDy of informal justice systems: access to justice anD human rights 7 sUMMarY
Page 1 and 2: informal justice systems charting a
Page 3 and 4: informal justice systems charting a
Page 5: List of abbreviations adr alternati
Page 9 and 10: state-linked or recognized along th
Page 11 and 12: . framing informaL Justice systems
Page 13 and 14: such as measures to tackle child ma
Page 15 and 16: ijs could also enforce norms that a
Page 17 and 18: face a choice between supporting in
Page 19 and 20: oX 8. programming in custom-based J
Page 21 and 22: oX 10. eXampLe of seLf-statement me
Page 23 and 24: could attempt to engage with the cr
Page 25 and 26: consideration. Programming can infl
Page 27 and 28: Programming should look at the tota
Page 29 and 30: introduction aims and approach unti
Page 31 and 32: it may be better to conceive of thi
Page 33 and 34: methodoLogy commissioned by unDP, u
Page 35 and 36: given the many and ambiguous relati
Page 37 and 38: the term ‘informal justice’ may
Page 39 and 40: and systems may provide or even enh
Page 41 and 42: cuLturaL rights and the LinK to Que
Page 43 and 44: who approaches the informal justice
Page 45 and 46: the country studies show that the l
Page 47 and 48: traditional authority structures fa
Page 49 and 50: emergence of modern nation states.
Page 51 and 52: models of common and civil law. 70
Page 53 and 54: may differ slightly between countri
Page 55 and 56: e good reasons why people prefer pr
Page 57 and 58:
the types of cases that traditional
Page 59 and 60:
there are few examples of religious
Page 61 and 62:
adjudicative function from its orig
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for clear selection criteria and co
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composition and appointment the tar
Page 67 and 68:
‘limited integration’ refers to
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some lc courts do not refer cases t
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transformation of customary, indige
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according to african rights (1996),
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People typically sought outside adv
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ineffectiveness: settlement of case
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nevertheless, the data also appear
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2. informal Justice systems’ case
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preferences and gender of users in
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KnoWLedge and use of LaWs and LegaL
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case outcomes Providers indicate th
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these functions or by legally recog
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substantive issues the core issue h
Page 93 and 94:
the path that the court has chosen
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this area is difficult to regulate
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impLications for programming the pr
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violence against women (VaW) is a h
Page 101 and 102:
the ceDaW reporting guidelines 174
Page 103 and 104:
on procedures for appointment. acco
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law, without discrimination. 203 in
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While law reforms in 2006 removed t
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substantive rights: Women’s human
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the recognition of customary marria
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custody of chiLdren the ceDaW commi
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may be far from their own families
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the 1998 ugandan legislation was th
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again, a distinction must be made b
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surface and be reflected in customa
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four guiding principles from the co
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customary leaders to carry out adop
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enforcement of such rights is uncer
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consideration of the periodic repor
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informaL Justice systems, chiLd vic
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in cooperation with unicef, unoDc h
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the country studies in this study d
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programming With informaL Justice s
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many standards on structure and pro
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structures in which custom is embed
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incLusion of informaL Justice syste
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While the World Bank study in sierr
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the category of safety and security
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CaTegorieS Sub- CaTegorieS Structur
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programming and the LinK to typoLog
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the study cites schärf’s view th
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advantages of ‘justice as theatre
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aSSumpTionS of feaSibiliT y and imp
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Page 161 and 162:
Page 163 and 164:
constitutional level alone, without
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aims to document customs that promo
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7. conduct/supervise the ascertainm
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Where local elders choose tradition
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practices, 416 which makes some use
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accountabiLity mechanisms: transpar
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LinKages among primary Justice prov
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Linkages to Wider development progr
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carbone, g. m., 2003: Emerging Plur
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Kanyongolo, f. e., 2006: Malawi: Ju
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siddiqi, D./one World action, 2003:
Page 185 and 186:
unesco.org/fileadmin/multimeDia/hQ/
Page 187 and 188:
Vera institute of justice, 2003: Me
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Press release of 15 july 2010 regar
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land act, chapter 227, 1998 (uganda
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methodoLogy process ...............
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country studies the country studies
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seLection of geographicaL areas for
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there is a risk of a tendency to pl
Page 201 and 202:
the quantitative research, which wa
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the operation of informaL Justice s
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viLLage courts and arbitration coun
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including in ijs. Public perception
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the ngo then appoints a paid mediat
Page 211 and 212:
WHEN YOU HAVE A PROBLEM OR CASE, WH
Page 213 and 214:
provider profiLes IF THERE IS A CON
Page 215 and 216:
matters involving female disputants
Page 217 and 218:
isk. in some places, schools had be
Page 219 and 220:
and opportunity factors, fear of th
Page 221 and 222:
ecommendations for future programmi
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country study - ecuador the study .
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are indigenous according to the un
Page 227 and 228:
that the deputy is recognized by th
Page 229 and 230:
society, without altering the princ
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in this regard, this provision of t
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epresentatives as well as the un in
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as concerns mediation, interviews w
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profiLes, incLuding gender and age
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for the settlement of a case, the p
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Placing in confinement 80 (in the c
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esources: Land and Water disputes,
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have equal opportunities to voice t
Page 247 and 248:
WHO WOULD PRESENT THE CHILD’S INT
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programming government programmes P
Page 251 and 252:
unifem works on Women’s access to
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anneX i - eXcerpt of the organic La
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art. 345. - DeclinaciÓn De comPete
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the mission also included meetings
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the roLe and functions of customary
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customary or isLamic LaW? in practi
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participation and gender the above-
Page 265 and 266:
While some interviewees did mention
Page 267 and 268:
majority of the people, and the cle
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of women bring gBV or VaW cases to
Page 271 and 272:
constitutional provisions, could pr
Page 273 and 274:
detain people. it is known for chie
Page 275 and 276:
succession matters invoLving chiLdr
Page 277 and 278:
LegisLation as mentioned above, att
Page 279 and 280:
outreach instruments unsurprisingly
Page 281 and 282:
country study - papua neW guinea me
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peace officers/ngo or church-sponso
Page 285 and 286:
eminder. if the subject of the noti
Page 287 and 288:
White Paper proposes a review of th
Page 289 and 290:
preferences of users and profiLes o
Page 291 and 292:
WHEN YOU HAVE A PROBLEM OR CASE, WH
Page 293 and 294:
against these developments in the l
Page 295 and 296:
communities. the capacity constrain
Page 297 and 298:
chiLdren and informaL Justice syste
Page 299 and 300:
the link between child rights and r
Page 301 and 302:
ecommendations for future programmi
Page 303 and 304:
country study - maLaWi methodoLogy
Page 305 and 306:
Political deadlock prevented the ad
Page 307 and 308:
carried out by the mediators is ava
Page 309 and 310:
as cammack, Kanyongolo and o’neil
Page 311 and 312:
normative basis the constitution re
Page 313 and 314:
means of expectations of proper con
Page 315 and 316:
chiefs against charging fees. a fur
Page 317 and 318:
a parallel structure to magistrate
Page 319 and 320:
evieW and supervision the commissio
Page 321 and 322:
user preferences WHEN YOU HAVE A PR
Page 323 and 324:
WHICH JUSTICE PROVIDER DO YOU PREFE
Page 325 and 326:
issues reLated to marriage the mhrc
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age of marriage, chiLd marriages an
Page 329 and 330:
forum in the community and the woma
Page 331 and 332:
courts illustrate the necessity to
Page 333 and 334:
a manual that was more specifically
Page 335 and 336:
most usefully be integrated into st
Page 337 and 338:
many of the harmful practices have
Page 339 and 340:
justice, as reflected primarily in
Page 341 and 342:
system that has developed due to lo
Page 343 and 344:
LC III Court at Sub-County Level LC
Page 345 and 346:
Police force, such as by initiating
Page 347 and 348:
the ugandan prison system as in man
Page 349 and 350:
unlike other regions of uganda, the
Page 351 and 352:
jurisdiction in criminal cases invo
Page 353 and 354:
one major weakness of the system is
Page 355 and 356:
of cases. typically, women have les
Page 357 and 358:
or in some cases ‘remanding’ th
Page 359 and 360:
adjudication bodies such as the ins
Page 361 and 362:
aised questions on the relationship
Page 363 and 364:
the offender. 95 as a consequence,
Page 365 and 366:
traditional justice approaches have
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dispute resoLution in northeast uga
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minor offences are usually dealt wi
Page 371 and 372:
livelihoods, income generation for
Page 373 and 374:
customary marriage the customary ma
Page 375 and 376:
female children can inherit propert
Page 377 and 378:
vioLence against Women the widespre
Page 379 and 380:
defilement ‘with or without corpo
Page 381 and 382:
however, much of a woman’s status
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the status of chiLdren in uganda Le
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act. 205 many of the offences that
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an educated girl in Karamojong soci
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their land to remain under customar
Page 391 and 392:
clarification of the lc system’s
Page 393 and 394:
there has been a tendency towards a
Page 395 and 396:
elated to the discussion of increas
Page 398:
united nations development programm
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