Customary Justice: Challenges, Innovations and the Role of the UN

Interest in informal legal systems has grown in recent years with greater emphasis being placed on local ownership as an effective means of development. Non-state justice systems, including indigenous, customary, and religious legal orders; alternative dispute resolution mechanisms; and popular justice fora are often the only avenues through which the masses can access justice. Customary justice systems (CJS) provide access to justice for marginalised or impoverished communities that may otherwise have no other options for redress. The essential nature of CJS systems to many communities emphasises the need for their recognition for successful rule of law promotion. However, customary and religious systems are not without deep flaws. They often discriminate against women and minorities, and are inconsistent with established criminal justice standards and human rights norms. Furthermore, informal dispute resolution mechanisms are often captured by local elites or religious leaders, and women, the poor, and ethnic minorities are unlikely to get equal access or fair treatment. At the UN level, a great deal of attention has been given to the empowerment of people to use the law and legal processes, as well as to interventions aimed to strengthen the capacity of local communities, to guarantee access to justice on a fair and non-discriminatory basis. However, the current debate provides little practical guidance on how to strengthen customary legal systems without consolidating inequitable or rights abrogating practices inherent in some of those systems, and what role the international community could play without undermining local ownership.

Interest in informal legal systems has grown in recent years, with greater emphasis being placed on local ownership as an effective means of development. Non-state justice systems, including indigenous, customary, and religious legal orders; alternative dispute resolution mechanisms; and popular justice fora are often the only avenues through which the masses can access justice. Customary justice systems (CJS) provide access to justice for marginalised or impoverished communities that may otherwise have no other options for redress. The essential nature of CJS, to many communities, emphasises the need to engage with such systems to ensure successful rule of law strategies. Engagement however, as discussed below, is not without challenges. Customary and religious systems are frequently characterised by deep flaws. They often discriminate against women and minorities, and are inconsistent with established criminal justice standards and human rights norms. Furthermore, informal dispute resolution mechanisms can be captured by local elites or religious leaders, and women, the poor and ethnic minorities are unlikely to get equal access or fair treatment.

However, criticism of traditional systems needs to be put into context. Neither gender discrimination nor lack of due process is peculiar to customary justice. In many of the countries where customary systems violate international human rights standards and principles, the state system itself is often no better.

For instance both customary and state systems in Somalia’s Somaliland and Puntland consider as legitimate the reduction of penalties for homicide considered to be an "honour killing". In South Sudan the right of the family of a homicide victim to choose between execution of the perpetrator or the payment of blood money, is enshrined in law as well as customary norms.

Click here to read to read the full report on customary justice.