African Perspectives on Tradition and Justice

This volume aims to produce a better understanding of the relationship between tradition and justice in Africa. It presents six contributions of African scholars related to current international discourses on access to justice and human rights and on the localisation of transitional justice. The contributions suggest that access to justice and appropriate, context-specific transitional justice strategies need to consider diversity and legal pluralism. In this sense, they all stress that dialogical approaches are the way forward. Whether it is in the context of legal reforms, transitional processes in post-war societies or the promotion of human rights in general, all contributors accentuate that it is by means of cooperation, conversation and cross-fertilization between different legal realities that positive achievements can be realized. The contributions in this book illustrate the perspectives on this dialectical process from those operating on the ground, and more specifically from Sierra Leone, Mozambique, Malawi, South Africa, Uganda and Rwanda. Obviously, the contributions in this volume do not provide the final outcome of the debate. Rather, they are a part of it. Book jacket.

Tom Bennett is a Professor in the Department of Public Law at the University of Cape Town in South Africa and has extensively published on customary law. Eva Brems is a Professor of Human Rights Law at Ghent University in Belgium. Her research interests include most areas of human rights law, with special emphases on women's rights, children's rights and cultural diversity. Giselle Corradi is a PhD candidate at the Human Rights Centre, Ghent University on the role of legal development actors at grassroots level regarding the relationship between human rights and customary justice in sub-Saharana Africa. Lia Nijzink is a Senior Researcher with the Law, Race and Gender Research Unit, University of Cape Town and conducted research on the role of traditional justice in international justice sector aid in Africa. Martien Schotsmans is a PhD candidate at the Human Rights Centre of Ghent University on globalisation and localisation in transitional justice, with a focus on tradition-based justice.

Acknowledgements	p. v
About the authors and editors	p. xi
Introduction	p. 1
Background to the Volume	p. 1
Historical context and current approaches	p. 2
Traditional justice and development in Africa	p. 2
The localisation of transitional justice	p. 5
The contributions	p. 9
Common themes	p. 11
Bibliography	p. 14
Access to justice and human rights in the traditional courts of sub-Saharan Africa	p. 19
Introduction	p. 19
The traditional African style of justice	p. 22
Due process of law	p. 24
Equal treatment	p. 26
Rights in criminal proceedings	p. 28
The civil/criminal distinction	p. 28
Due process in criminal proceedings	p. 31
The presumption of innocence	p. 32
Legal representation	p. 33
Access to justice	p. 34
Conclusion - And the right to culture	p. 38
Bibliography	p. 40
Courts and the application of customary law in Malawi: Towards the reintroduction of local courts	p. 47
Introduction	p. 47
Historical background	p. 47
The structure of the Malawi court system since 1994	p. 50
The application of customary law	p. 51
Problems in the magistrate courts	p. 51
Developing customary law jurisprudence	p. 54
The recommendations of the Malawi Law Commission	p. 59
The structure and positioning of the new local courts	p. 60
Presiding officers and assessors	p. 61
Jurisdiction	p. 62
Conclusion	p. 64
Bibliography	p. 65
Powers, rights and citizenship: The 'return' of the traditional authorities in Mozambique	p. 67
Introduction	p. 67
Tradition, between the past and the future	p. 68
Civilization, culture and citizenship in the colonial context	p. 72
Nationality and citizenship: toughening the abyssal line	p. 72
Highlights of colonial administrative reforms	p. 75
Old and new actors in the political fabric of independent Mozambique	p. 78
Amplifying the plural network of justices	p. 79
The return of 'old' actors	p. 83
Contemporary political implications of legal pluralism	p. 87
Bibliography	p. 90
Traditional justice and human rights in post-war African countries: Prospects and challenges	p. 95
Introduction	p. 95
Confronting the justice challenge	p. 96
Is traditional justice the answer?	p. 98
Characteristics	p. 101
The human rights question	p. 106
The Sierra Leone conflict	p. 109
Justice and reconciliation from below	p. 111
Reintegration and reconciliation of ex-combatants	p. 112
Community reconciliation	p. 113
Philosophical expressions that are germane to the reconciliation process	p. 115
Conclusion: The future of traditional justice	p. 116
Bibliography	p. 117
Reinventing and validating the cosmology and ontology of restorative justice: Hermeneutics of the traditional Acholi justices system in Northern Uganda	p. 121
Rationale of the study: Contextualizing the assumptions and traits of justice in transitional justice	p. 121
Introduction	p. 121
The thesis and outline of the chapter	p. 122
Central argument	p. 122
Methodology	p. 123
Live and let live: A critique of dominant modernist justice in transitional justice discourse	p. 124
Introduction	p. 124
The modernist critique of tradition	p. 124
The modernist epistemology and retributive justice	p. 126
The ICC and retributive justice in the Northern Uganda armed conflict	p. 128
The resurgence of the traditional justice system in Northern Uganda	p. 130
The notion of tradition in the Acholi community	p. 130
Reconstructing and validating tradition: A hermeneutics	p. 131
Acholi cosmology and ontology: Tempels' framework	p. 132
Cosmology and ontology among the Acholi of Uganda	p. 133
The ontological hierarchy - Reconciliation and restoration in Acholi	p. 135
Acholi traditional justice and human rights	p. 137
Acholi understanding of human rights	p. 137
The Acholi concept of rights being natural and communal	p. 138
Duty and responsibility in human rights	p. 139
Reliving Acholi traditional justice mechanisms: Plant Acholi in an Acholi garden	p. 140
The Acholi concept of dano as a framework for reconciliation	p. 140
Justice and systematic thinking: Returning the ICC to the classroom	p. 142
Conclusion	p. 144
Bibliography	p. 145
Revisiting the legal and socio-political foundations and (Western) criticisms of gacaca courts	p. 149
Introduction	p. 149
Legal and socio-political underpinnings of gacaca courts
Prosecuting genocide cases in post-genocide Rwanda	p. 152
Motivations for the establishment of the gacaca courts	p. 154
Socio-legal dimensions	p. 155
Socio-political considerations	p. 156
Socio-cultural motivations	p. 159
(Western) criticisms of gacaca courts	p. 160
Non-inclusion of RPF/A crimes in the gacaca process	p. 161
Non-compliance with due process guarantees	p. 165
Lack of judicial independence	p. 166
Conclusion	p. 168
Bibliography	p. 168
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African Perspectives on Tradition and Justice

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