Time to Integrate Traditional and Formal Justice

Olav Kjørven

In some developing countries, informal or traditional justice systems resolve up to 80 percent of disputes, over everything from cattle to contracts, dowries to divorce.

Disproportionately, these mechanisms affect women and children.

A new report, commissioned by UNDP, UNICEF, and UN Women and produced by the Danish Institute for Human Rights, provides the most comprehensive UN study on this complex area of justice to date. It draws conclusions based on research in Bangladesh, Ecuador, Malawi, Niger, Papua New Guinea, Uganda, and 12 other developing countries.

These systems, it concludes, are a reality of justice in most of the countries where UNDP works to improve lives and livelihoods and government capacities to serve. The evidence illustrates the direct bearing such systems can have on women and children’s legal empowerment, covering issues from customary marriage and divorce to custody, inheritance, and property rights.

It’s time to engage squarely with customary justice systems and integrate them into broader development initiatives aimed at guaranteeing human rights and access to justice for all.

These systems are often far more accessible than formal mechanisms and may have the potential to provide quick, inexpensive, and culturally relevant remedies. But traditional development models have for years paid them little attention. To be effective, both systems must work together for development.

Both justice systems—the formal, government-supported model of laws, police, courts, and prisons—and informal or traditional systems can violate human rights, reinforce discrimination, and neglect procedural fairness. But both can also adapt and engage so that human rights are respected and access to justice is universal.

In Somalia, UNDP’s engagement with customary authorities followed failed attempts to support mainstream rule of law institutions in Somaliland, which favoured a state-centred approach amid armed conflict, even as government institutions were failing.

After a survey found up to 80 percent of the population preferred arbitration by clan leaders, a new strategy used women’s access to justice as an entry point for engagement—bringing in women’s organizations with more legitimacy and capacity than any formal institutions.

In Bangladesh and Malawi, NGOs gained access to traditional informal justice systems by providing support and obtaining the trust of the leaders and communities.

Training adjudicators, increasing the number of women in decisions-making posts, empowering paralegals and women’s groups to monitor and engage with customary leaders—all these efforts will continually improve individual and communal experiences of justice.