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Linking formal and informal justice

20 Jun 2016

“There is no peace and security without democratic governance and development. We need to invest in the rule of law and human rights,” opened George Mukundi Wachira, Head of the African Governance Architecture (AGA) Secretariat, African Union (AU) Commission at the Knowledge Platform Security and Rule of Law's 4th Annual Conference. The event brought together 200 policymakers, researchers and practitioners working in the fields of security and justice. IDLO was one of 30 organizations represented to present leading knowledge around innovative approaches to rule of law programming and policy. 

IDLO co-hosted a parallel session with the Van Vollenhoven Institute and CORDAID entitled: Linking informal and formal justice systems in fragile and conflict-affected states. In this session, IDLO was able to share original research findings to inform future rule of law and justice programming. Experts began the session by acknowledging that state-centric approaches to strengthening access to justice have failed to address the needs of populations in fragile or conflict-affected countries. The state is often absent, and, if justice is delivered, it is often delayed and ineffective. Limited success of state systems enforces reasons why people resort to local sources of justice.

Informal justice systems hold legitimacy in the eyes of local populations, providing a pathway to justice where there might not be one otherwise. They offer benefits relating to cost, accessibility, physical proximity, and swift justice delivery. In some cases, informal justice systems provide basic human rights to people where governments may deny them. 

However, despite the many benefits, there are also challenges in engaging with informal justice systems. Informal systems may be subject of elite capture: the consolidation of existing hierarchies and dominating powers often happen at the expense of the most vulnerable and disempowered.  As a consequence, it may not be aligned with human rights standards and constitutional provisions: certain norms and practices, such as public humiliation and violence, contradict the fundamental principles of fair trial, non-discrimination and equality, among others.

Traditional donor-led legal reform approaches have emphasized the negative attributes of informal justice systems and promoted formal institutions instead. As a consequence, informal justice has been discouraged or ignored, with the effect of distancing reform efforts from the lived reality of the most. Despite the challenges of informal justice outlined above, emerging research findings suggest that linking formal and informal justice may improve both, with positive effects for the most vulnerable. IDLO’s work on justice systems in Somalia, for example, aims to strengthen these linkages and improve access to justice of vulnerable people by promoting the mutual recognition of the two systems and the adoption of minimum human rights standards. These efforts start from the premise that informal justice plays an important role in the everyday lives of many of the world’s poor and that customary systems are not inherently at opposites with human rights.

As IDLO’s work on women’s land rights in Burundi shows, the obligation to protect and promote human rights extends to formal and informal systems alike: both systems, in fact, can violate such an obligation, reinforce discrimination and deny procedural justice. Research points out that in many contexts informal justice systems deal with the protection of interests of women on crucial issues such as marriage, custody, inheritance and property. For this reason, and especially in contexts where state justice systems do not meet adequate standards, informal systems provide valuable entry points for practitioners to improve the delivery of justice and the protection of human rights, gender equality and procedural fairness. 

This research presents an opportunity for programming. While it is well understood that practitioners should engage with and support informal justice, many experts are learning to better understand how. The complexities of informal justice have been well identified through research and knowledge exchange, and practitioners can build on this to further establish what works. In order to do so, future programming should give due attention to norms (both customary and statutory), processes (both formal and informal) and institutions (both official and unofficial).

Programming should also include the justice needs of outlying and isolated communities, not just communities close to national justice institutions. Though projects may be more difficult to implement in remote areas, practitioners can likewise work on the capacity of the formal system to reach out and connect to communities for their access to justice.

Finally, justice is not an isolated sector. The rule of law is a bedrock for development and central to the 2030 Sustainable Development Agenda. While access to justice is featured in Goal 16, justice pervades all the SDGs, influences norms and shapes societal structures. The work to link formal and informal systems is implicated in broader development goals, and should be treated as such. By strengthening this link, justice can have far-reaching societal influence and advance the wider development agenda.

By Davide Soto and Lorelei French