The place of traditional justice (its relative importance, the forms it takes, and its relationship to formal systems) varies widely.
In Africa, parts of the Middle East (not so much Sharia as communal dispute resolution with or without the former’s influence), Asia and the South Pacific, it often represents by choice or necessity the means for resolving most disputes. In Latin America, it at most serves, and hardly exclusively, 50 percent of the population, and more often less than 10 percent. Nonetheless, Latin America seems to have accorded it a mystique (especially in countries – e.g. Colombia where it affects less than 2 percent of inhabitants) not seen in regions where it predominates. In Africa, traditional mechanisms are the rule by practice; in Latin America they are a part of one’s right to identity, cultural patrimony and so on. Coming from a pragmatic Anglo-Saxon background I see little difference between communal mechanisms and local preference – Sunday blue laws, maybe even prohibition of gay marriage or certain sexual practices – and would offer both the same protections, but traditional practices seem to mean one thing in the context of developing regions and another in developed ones. (And no, I do not endorse the prohibition of gay marriage anymore than I endorse blood money, but they certainly are equally embedded in local tradition, the only difference being where). In short, I would argue that we need to demystify traditional justice and accept it as:
- A local preference which over time may have to succumb to overarching national rules and;
- Recognize nonetheless that local communities, so long as more or less democratically organized, can control what happens within them (whether or not we agree with their values – since in the globalized era, dissenters are no longer fated to stay there).
That said, the other question is how justice reforms and especially those funded by donors can deal with this phenomenon. First off, there are two extremes conditioning the answers – countries where local tradition persists because budgets constrain the expansion of state services, and those where state services could reach all citizens but where some prefer not to use them. Second, in either situation, the notion of donors “strengthening” local traditions seems oxymoronic. Once donors start tinkering with traditional mechanisms they have already made them less traditional. Moreover, even donors with a large footprint (e.g. USAID) do not have the staff to do this and so have to rely on surrogates, largely NGOs composed of less traditional members. Where donors do get involved they can make questionable choices, as in the World Bank’s support of Ghana’s chieftaincy council which, as reported by others, has worked to enhance chiefs’ powers far beyond their traditional reach. Donors demonstrably have sufficient problems understanding the workings of state systems; perhaps their best bet is to perfect their performance there, and so create a formal alternative to tradition. This would reduce their work with traditional systems to helping countries build an interface between them and state institutions. Funding legal anthropologists to study traditional systems is fine, but with an estimated 2,400 in Africa (and maybe 800 in Papua New Guinea alone), well, that looks like an uphill battle with no predictable and usable result.