Mali’s crisis of 2012-2013, in which two-thirds of the country was occupied by Tuareg rebels and Islamic extremists, was accompanied by brutal rule in the North and a near-collapse of the state. Many victims have yet to see redress for the abuses they suffered; justice remains elusive.
Endeavors to resolve disputes through informal means have probably existed forever – they were certainly around well before the modern formal justice systems, as we know them today, evolved.
These informal mechanisms are so deeply entrenched in some parts of the world that they continue to play a significant part in people's lives, dealing with everything from property disputes, to marriage and divorce, to inheritance.
In fact, more than 80 percent of disputes may be resolved through these means in some developing nations. Often, this is simply because customary justice systems are easily accessible and affordable when compared to the distances and costs related to formal justice systems. And in times of disaster or conflict, when the formal justice system is not operational, there may be no other option.
Informal justice systems frequently depend on mediation, reconciliation and consensus. Still, engagement with them is sometimes frowned upon, as they tend to promote patriarchal interpretations of culture, and conflict with internationally accepted conventions on rights issues. They could, for instance, impose punishments regarded as inhumane or discriminatory.
But given their extensive usage, there is a growing realization of the need to not only engage with them, but to create links between them and the formal justice system. Doing so could help improve accountability. It could also encourage community leaders to adopt mechanisms that are consistent with international standards.
IDLO Somalia Country Director Adam-Shirwa Jama told a Washington roundtable hosted by the United States Institute of Peace that reform of the justice system had begun in Somalia. While it would take time for justice institutions to reach the whole of the country, Mr. Jama said, IDLO was encouraged by the international support given to these nascent institutions.
IDLO is hosting a customary justice workshop in Mogadishu this week in conjunction with the Somali Ministry of Justice and Constitutional Affairs. Taking part are elders from four districts of Somalia.
In 2012, the Federal Government of Somalia took office with international backing after two decades of warfare. Since then, the government has developed a National Stabilization Strategy (NSS) to address enduring areas of conflict in the country with ‘top-down’ and ‘bottom-up’ reconciliation and clan-conflict reduction strategies. While commendable for its multifaceted response, there is a recognized need to improve rule of law at the community level.
While showing steady progress, the formal justice system in Somalia remains fragile. Somalis continue to use traditional dispute resolution (TDR) mechanisms to resolve conflicts in their communities due to their physical accessibility, low cost and legitimacy in the eyes of local participants. The TDR system has the potential to improve access to justice in Somalia, but at the same time informal justice can reinforce forms of discrimination and support practices that do not comply with international human rights standards.
In June 2015, IDLO commenced the project: Researching the Impact of Land Tenure Registration on Land Disputes and Women’s Land Rights in Burundi.
Land Tenure Registration (LTR) programs involve issuing proof of ownership to holders of land rights to increase their legal certainty. Such programs are undertaken for a variety of reasons. While much is known about the impact of LTR on factors like access to credit and agricultural output, there is a gap in knowledge of its impact on land disputes, particularly in post-conflict settings.