International Development Law Organization

Journeys to justice: Exploring customary systems in Mali

20 Apr 2018

Mali has suffered from ongoing attacks from armed groups, creating an enduring climate of conflict and volatility. The Bamako Peace and Reconciliation Agreement was signed in 2015 between the Malian government and rebel groups, inspiring hope for a new era of peace and stability after the coup in 2012. However, implementation of the accord is lagging behind and sporadic militant attacks serve as a reminder of the country’s fragile sense of security and long path to peace.

Improved functioning of the criminal justice system can end impunity, which is perceived as one of the main causes of instability. The judiciary is overburdened, and slow justice delivery discourages the population from seeking formal legal remedies. Especially in the north, the criminal justice system remains dysfunctional and lacks public trust.

MINUSMA/Marco Dormino - Participants at the signing of the Agreement for Peace and Reconciliation in Mali by the Coordination coalition of armed groups in Bamako.

IDLO is working in Mali with criminal justice sector actors and institutions - both formal and informal - to help them provide credible and effective justice for Malian citizens by addressing locally-identified and specific contextual needs.

A year and a half after the launch of the program, IDLO Program Manager, Mr. Jean Mutabesha spoke at an event about the role of customary systems in the country and how the program engages with them. “When you want to implement a program, you need to ask, ‘What is the best entry point? Who are we working with and at what level?’”

The program, made possible by support from the Government of the Netherlands, has piloted an innovative model, Problem-Driven Iterative Adaptation (PDIA), which is based on promoting local solutions to local problems. This adaptive, iterative and flexible approach was uniquely designed to comprise “cadres de concertation”, or consultation frameworks, which seek to enable Malian stakeholders at the local, regional and national levels to take ownership over the program’s implementation and lead the institutional reform activities.

The program works in four regions across Mali: Mopti, Gao, Timbuktu and Ségou.

“[The ‘cadres de concertation’] identify at a local level what are the needs in order to deliver justice operationally,” continues Mr. Mutabesha. “The project itself responds to a need to bring judicial recovery for the reestablishment of the rule of law by re-establishing the authority of the state in the northern regions.”

Customary systems in Mali

Compounded with the historical distrust between the northern regions and Bamako, the 2012 conflict forced the Malian state out of the north, leaving an enduring institutional vacuum. As the result of an absent state, civil society and other groups took over to service the justice needs of citizens.

Even prior to the 2012 crisis, there were existing barriers to accessing the formal justice system. A largely rural country, Mali’s national poverty rate was 45 per cent in 2013 with 90 per cent of poor populations residing in rural areas according to the World Bank, leaving little recourse for those in remote locations and without the financial means to approach formal justice institutions. An estimated 80 per cent of family and land conflicts in poor and rural communities are handled by the customary justice system.

A 2014–2015 survey of 36 African countries conducted by Afrobarometer found that Malians have some of the lowest contact rates with the judicial system. While many citizens have low trust in the ability of the formal system to effectively render justice services, traditional leaders are viewed positively.

AD166: In Mali, citizens’ access to justice compromised by perceived bias, corruption, complexity.

Research by the Clingendael Institute, Under the microscope: Customary systems in northern Mali, reported that 84 per cent of interviewees are satisfied with customary systems. The fact that customary mechanisms are free, easily accessible and perceived as more efficient than the formal justice system make these paths to recourse more favorable for many.

The fact that customary mechanisms are free, easily accessible and perceived as more efficient than the formal justice system make these paths to recourse more favorable for many.

However, customary systems are not always in line with international standards of human rights. What’s more, there are three different systems of law at play in Mali that produce multifaceted legal dynamics: the legal legacy of French colonization, Islamic law, generally applied in the northern regions, and customary law, inspired by local practices and traditions.

“Mali presents a very specific case and a complex situation. For example, it’s difficult to find a line of demarcation or distinction between the various traditional authorities,” comments Mr. Mutabesha. Many community leaders play several roles at the same time, such as mayor, traditional chief and imam.

“Mali presents a very specific case and a complex situation. For example, it’s difficult to find a line of demarcation or distinction between the various traditional authorities,” comments Mr. Mutabesha. Many community leaders play several roles at the same time, such as mayor, traditional chief and imam.

It is because of these complexities that IDLO has designed a program based on previous research, such as the work done by the Clingendael Institute, that constantly balances programmatic considerations and potential areas of weakness. For example, defining good justice outcomes can change between community leaders depending on customs, traditions, religion and belief.

“Is it about quality of justice or is it about just accessing justice?” asks IDLO’s Regional Manager for Africa, Ms. Enid Muthoni. “And whose quality are we defining? Who determines that ‘this justice is good enough for me’?”

UN Migration Agency - Mali - MCF00224 - Flickr - July 2013

IDLO's approach in Mali

While programmatic interventions that focus on developing constitutions and drafting laws and policies can assist in realizing international standards, too often these efforts risk being detached from the community level and are unknown or out of reach to potential beneficiaries.

Ms. Muthoni continued, “As actors on the ground [implementing] programming to strengthen institutions, we must seek ways to work to ensure that, at the end of the day, fundamental rights of different groups get incorporated – while at the same time, not changing these customary systems so much that we remove the parameters that make them useful: accessibility, legitimacy, acceptability.”

This notion is integral to IDLO’s approach in Mali. The cadres de concertation involve actors from the beginning to the end of the justice chain – traditional chiefs, police, tribunals, civil society, prisons and more – to improve the public perception of the justice system and the quality of justice services.

The program places particular emphasis on the involvement of civil society in the consultations. “It is often civil society who receive the first complaints and who are first point of contact with citizens for their justice questions and needs. We noticed that civil society plays the role of judicial actor as the first link in terms of orientation and advice,” commented Mr. Mutabesha.

The feedback from members informs activities, which are executed with technical support from IDLO. All interventions proposed in the consultations need to aim for a “rapprochement” between justice actors and the population, sometimes through awareness raising activities. Recently, IDLO hosted an interregional meeting to convene members of the cadres de concertation across the four locations of the program to share accomplishments, challenges and experiences.  

“Customary justice is not a luxury – it’s a necessity.”

To deliver justice outcomes that are more coherent, says Mr. Mutabesha, there needs to be strong collaboration between the informal and formal actors. One of the most prominent criteria for the cadres de concertation is engagement with the community leaders who are already embedded in justice decisions – so much so, that a decision made within the formal sector won’t be executed without the engagement of traditional leaders. Ms. Muthoni echoes this significance in her remarks: “Customary justice is not a luxury – it’s a necessity.”

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