Indigenous Practices

Africa's rich indigenous justice traditions, focused on repairing the community harm caused by crime, have been revived to complement and in some cases to replace Western-based criminal justice systems

You cannot compare apples to oranges: Ubushingantahe vs. criminal justice

from Josh Perry's post on Africa Faith & Justice Network: Conflict resolution in Burundi was halted for decades due to the ongoing ethnic strife between the Hutus and the Tutsis. As the Burundian civil war continued, a British based organization named ActionAid helped to rebuild customary institutions that were destroyed by the conflict, and the Bashingantahe council, known also as Ubushingantahe, was one. However, in 2000, the passage of the Arusha Accord settled the civil war, brought about peace negotiations, and formally recognized the Ubushingantahe as a conciliatory judicial mechanism.

Tshehla, Boyane John. Traditional Justice in Practice: A Limpopo Case Study

The monograph introduces the institution of traditional leadership. It demonstrates how this system has been entrenched in the rural areas and raises related questions (chapter two). It deals with the policy and legislative framework that applies to traditional leadership. It shows that traditional leadership as an institution has been tremendously influenced by both colonisation and apartheid systems of government... The monograph then proceeds to present current day experiences as observed in Mokopane, a traditional community in Limpopo province (chapter 3). Two cases – about domestic disputes – are dealt with. These cases are used to demonstrate how an ordinary traditional court deals with cases and disputes. This paves the way for an interrogation of some of the problems that pertain to a traditional court. The issue of gender (and gender relations), as well as that of the procedure followed in the traditional courts, are dealt with. Crime prevention is one of the areas in which traditional leaders play a significant role – at least so it is claimed. The role of traditional leaders in crime prevention is examined and interrogated... Having confirmed, on the basis of the evidence presented, that traditional leaders do indeed play a significant role in crime prevention, the monograph goes on to assess feasible ways in which traditional leaders can participate in improving their communities’ access to justice (chapter 5). The monograph ends by concluding that traditional leadership is entrenched in the rural areas and has a crucial role to play. However, there are problems that need to be addressed in order to ensure that justice prevails in these traditional communities. (excerpt)

The gods are angry

from the article by George Ayittey in the Wall Street Journal: ....There are more than 2,000 African ethnic groups but despite the incredible diversity there are striking commonalities among them. Whereas Western jurisprudence emphasizes punishing the guilty, the widespread African tradition stresses restitution and reconciliation or "restorative justice"—the basis of South Africa's Truth and Reconciliation Commissions established after the dismantling of Apartheid. Africa's economic heritage featured free village markets. There were rudimentary free markets in Timbuktu, Kano, Salaga, Onitsa, Mombasa and elsewhere before the advent of the colonial era. Whereas the West practiced majoritarian, or representative, democracy, ancient Africans practiced participatory democracy, where decisions were taken by consensus at village meetings variously called asetena kese by the Ashanti, ama-ala by the Igbo, guurti by the Somali, dare by the Shona, ndaba by the Zulu or kgotla by the Tswana.

Schärf, Wilfred. Non-State Justice Systems in Southern Africa: How should Governments Respond?

As Wilfried Scharf remarks, non-state justice systems are a reality in almost all countries around the world. Their extent, character, and importance vary considerably depending on a wide range of local factors. These include, for example, the diversity of the population, levels of urbanization, the type of economy, and the cultural moral system. Other important factors in understanding the nature and shape of non-state justice systems in developing countries in Africa have to do with the organization of the state in the decolonization period following the 1960s and with moves toward democratization in the 1990s. In this context, Schxc3xa4rf looks at six countries in particular: South Africa; Malawi; Lesotho; Zambia; Botswana; and Mozambique. He discusses the terminology used in the last half century in reference to non-state justice; the ideological influences on this terminology; different forms of non-state justice in the six countries; and state responses to such justice. Scharf includes recommendations on how states, donors, and citizens can contribute to better governance and more effective cooperation between different forms of non-state justice.

Schärf, Wilfred. Community Dispute Resolution Structures

Schärf questions the effectiveness and cultural compatibility of the western model of criminal justice. In this questioning, he points out the restorative aspects of the community dispute structures found in the poor neighborhoods of South Africa. These structures use the holistic approach from African traditionalism to resolve conflict, both civil and criminal. He compares these structures to the restorative measures used elsewhere such as family group conferencing, victim offender mediation, and community conferencing. He points out that these structures are more comprehensible for the lower classes and are seen as more fair. At the same time, Schärf does not call for a complete end to the current criminal justice system. He proposes more of a mixture with the court allowing more narrative testimony, creating the holistic feel of encounter.

Resolving conflicts using traditional mechanisms in the Karamoja and Teso regions of Uganda

from the Briefing prepared by Chris Chapman and Alexander Kagaha for Minority Rights Group International: This study is the result of intensive research and consultations with community representatives and local and national government officials in Karamoja and Teso regions of northeast Uganda. The conclusions of the research can be summarised as follows:

Promoting international support for community-based justice mechanisms in post-conflict Burundi and Uganda

from the Introduction to a Report by Bahati Ntama Jacques and Beth Tuckey: Those who committed crimes in the long wars in Burundi and Uganda are wanted by both the national and international criminal court system, but very little attention is given to peacebuilding, reconciliation, or restoration of the communities destroyed by violence. For example, the reconciliation process of mato oput, an Acholi tradition in northern Uganda, and the Ubushingantahe in Burundi, uniquely achieve justice and healing of the concerned parties in a way that a formal justice system cannot. These methods of restorative justice emphasize community-building and the need to reconcile an entire society after conflict. To complete this project, interviews with both victims and perpetrators of crime, as well as implementers of restorative justice programs were conducted in Burundi and Uganda. Using this local perspective, the paper elevates the need for international recognition and support for restorative justice mechanisms in post-conflict communities in Africa. Civil society has an important role to play in elevating awareness of these traditions and practices, and the U.S. government can enhance restorative justice through both leverage and funding. Ultimately, it is imperative that Western governments and citizens around the world perceive restorative justice as a legitimate and much-needed form of justice.

Peters, Melanie. Traditional Justice on Trial. Rule of Law

Mepanie Peters observes that, since the inception of the new constitution, traditional leaders in South Africa have been advocating for strengthening of their role in the justice system. Traditional courts, also known as chiefs' courts, have played a significant role in the administration of justice in the African community. Some see these courts as prototypes of desirable dispute-resolution mechanisms; others see them as outmoded in a modern social, economic, and political context. In this article, Melanie Peters surveys arguments for and against traditional courts in South Africa.

Penal Reform International. Research on the gacaca – PRI

The fifth Gacaca research report covers the period from July 2002 to the beginning of 2003. This period was devoted to preparing for the Gacaca tribunals in Rwanda at cell level. As well as giving an overview of the development of systems such as compensation, community service and monitoring, the report also provides three local case studies. These cases show that the local situation, the local history of the genocide and the role of the local authorities are important factors to be taken into consideration in order to understand the differences between zones. (publisher's abstract)

Penal Reform International. Research Report on the Gacaca – PRI Report 1

For the Rwandan government, the Gacaca, an original blend of restorative and retributive justice, is the main tool for reconciliation in Rwandan society. This series of three reports focuses on the gacaca courts and the context of reconciliation in the Kibuye region - a region renowned for its extreme poverty, the intensity of the violence it suffered during the genocide, and the presence of an above-average number of 'Righteous' men and women who chose to rescue Tutsis during a period when the dominant social norm was to kill. (publisher's abstract)

Penal Reform International. Research Report on the Gacaca

During 2003 in Rwanda, a Presidential Decree ordered the provisional release of some categories of detainees. Around 22,000 persons were released from prison at the time. Their reintegration was achieved in two stages: first they spent some time in solidarity camps, and then they returned to the hills. To help prepare for the new releases being announced for the coming months, this report examines the conditions in which these two stages took place. (publisher's abstract)

Penal Reform International. Research Report on Gacaca Courts – PRI

For the Rwandan government, the Gacaca, an original blend of restorative and retributive justice, is the main tool for reconciliation in Rwandan society. This series of three reports focuses on the gacaca courts and the context of reconciliation in the Kibuye region - a region renowned for its extreme poverty, the intensity of the violence it suffered during the genocide, and the presence of an above-average number of 'Righteous' men and women who chose to rescue Tutsis during a period when the dominant social norm was to kill. (publisher's abstract)

Penal Reform International. Report on Monitoring and Research on the Gacaca

For the Rwandan government, the Gacaca, an original blend of restorative and retributive justice, is the main tool for reconciliation in Rwandan society. This series of three reports focuses on the gacaca courts and the context of reconciliation in the Kibuye region - a region renowned for its extreme poverty, the intensity of the violence it suffered during the genocide, and the presence of an above-average number of 'Righteous' men and women who chose to rescue Tutsis during a period when the dominant social norm was to kill. (publisher's abstract)

Penal Reform International. Rapport de synthèse de monitoring et de recherche sur la Gacaca

Le programme de recherche mené par PRI sur les juridictions Gacaca au Rwanda depuis avril 2001 a pour objectif de fournir aux autorités nationales en charge du processus, dans un premier temps la 6ème Chambre de la Cour Suprême, puis aujourd’hui le Service National des Juridictions Gacaca, des données objectives en vue de soutenir la conception et la mise en oeuvre de ces juridictions. (excerpt)

Penal Reform International. Rapport de recherche sur la gacaca

During 2003 in Rwanda, a Presidential Decree ordered the provisional release of some categories of detainees. Around 22,000 persons were released from prison at the time. Their reintegration was achieved in two stages: first they spent some time in solidarity camps, and then they returned to the hills. To help prepare for the new releases being announced for the coming months, this report examines the conditions in which these two stages took place. (publisher's abstract)

Penal Reform International. Rapport de monitoring et de recherche sur la gacaca

For the Rwandan government, the Gacaca, an original blend of restorative and retributive justice, is the main tool for reconciliation in Rwandan society. This series of three reports focuses on the gacaca courts and the context of reconciliation in the Kibuye region - a region renowned for its extreme poverty, the intensity of the violence it suffered during the genocide, and the presence of an above-average number of 'Righteous' men and women who chose to rescue Tutsis during a period when the dominant social norm was to kill. (publisher's abstract)

Penal Reform International. Rapport de monitoring et de recherche sur la gacaca

This report focuses on community service, a sentence issued by the Gacaca Courts which can replace up to half of the prison sentence for those perpetrators of genocide who voluntarily confessed to their actions. Community service is intended to be an opportunity for the perpetrators to provide practical help and assistance to the victims and their families, thus encouraging reconciliation and peaceful cohabitation amongst the two groups. Drawing on extensive field research and testimony from all those involved in community service in Rwanda, this report highlights the successes but also several areas of increasing concern surrounding this innovative tool of reconciliation. (publisher's abstract)

Penal Reform International. Rapport de monitoring et de recherche sur la Gacaca: Les témoignages et la preuve devant les juridictions Gacaca

This latest report from the gacaca monitoring project deals with the issues surrounding testimony, evidence-giving and proof in the gacaca courts. In effect, the whole gacaca justice system relies on witness statements and oral accounts of events – accounts which can be distorted by the passing of time, corrupted by the desire for retribution or curtailed for the sake of expediency. This report looks in detail at the difficulties which have arisen in uncovering the ‘truth’ of the genocide and the effect the gacaca testimonies continue to have on those seeking justice and reconciliation. (publisher's abstract)

Penal Reform International. Rapport de monitoring et de recherche sur la Gacaca

This report explores the challenges faced by the Rwandan national authorities during the information gathering phase of the Gacaca process. (publisher's abstract)

Penal Reform International. Rapport de la recherche sur la gacaca – PRI

The third Gacaca research report covers the period from April to July 2002. During this period, the first phase of the gacaca programme began on a pilot basis in twelve selected areas. This report documents the first meetings and makes some recommendations for the further development of the Gacaca system. (publisher's abstract)