Locating Legal Pluralism: Perspectives on the Informal Justice Systems in Sub-Saharan Africa

Abstract

Conflicts are most generally understood as manifestations of adversarial social action, involving two or more actors, with the expression of differences often accompanied by intense hostilities. The conditions of scarcity, value incompatibilities, and ethnicity can all become a continuing source of this contention. When protracted conflict, arising from the failure to manage antagonistic relationships, are to be managed or resolved, it is the state that is most often called to play the role of an “honest” mediator. It is then the state’s responsibility to harmonize and institutionally accommodate the opposing positions without the destruction of the social fabric. However, in understanding and attempting to resolve contemporary conflict, we also need to examine the ways in which the parties to a conflict relate to each other socially, economically and culturally, along with the nature of political decision making within the conflict locations. Despite the regional and cultural divergences across globe, post-colonial states world over have had to obliterate their traditional models of settling diverse, conflicting interests in favour of a more rule-governed society. The formal state organs thus became the new instruments of arbitration, giving way to abstract social legislations.

This paper aims to explore the revision of the idea and practice of justice in Sub-Saharan Africa, from a consent and justice- oriented informal system that accorded primacy to better access to justice to a purely state centred concept of the rule of law. The transition is symptomatic of the transfer of western-style judicial institutions to post-conflict societies with scant regard for the ground realities of the erstwhile colonized societies, like those in Sub-Saharan Africa. The traditional communities of these African countries continue to look up to informal justice structures for restoring social peace, even if they do not meet the requirements of the rule of law. “Civilizing the uncivilized” within the parameters of western values have effectively resulted in a neo-colonization of the legal cultures of post-colonial worlds like those in Sub-Saharan Africa. Hence, the attempt of the proposed paper would be to examine the potential of traditional justice mechanisms in Sub-Saharan African countries to effectively complement conventional judicial systems, along with their ability to link justice to democratic development. The paper would seek to develop critical insights by looking in to specific case studies in order to interrogate the modern justice system’s commitment to instrumental objectives such as reconciliation, accountability, truth-telling, legitimacy and reparation, and in restoring and rebuilding hope and confidence in conflict-ridden communities of Sub-Saharan Africa.

Keywords: Conflict, Informal Legal Systems, Justice, Neo-colonization, Rule of Law