AFRICAN PERSPECTIVES ON TRADITION AND JUSTICE

Transcription

1 AFRICAN PERSPECTIVES ON TRADITION AND JUSTICE Edited by Tom Bennett Eva Brems Giselle Corradi Lia Nijzink Martien Schotsmans Cambridge Antwerp Portland

2 Publishing Ltd. Trinity House Cambridge Business Park Cowley Road Cambridge CB4 0WZ United Kingdom Tel.: Distribution for the UK: Hart Publishing Ltd. 16C Worcester Place Oxford OX1 2JW UK Tel.: Distribution for Austria: Neuer Wissenschaftlicher Verlag Argentinierstraße 42/ Wien Austria Tel.: office@nwv.at Distribution for the USA and Canada: International Specialized Book Services 920 NE 58th Ave. Suite 300 Portland, OR USA Tel.: (toll free) info@isbs.com Distribution for other countries: Publishing nv Groenstraat Mortsel Belgium Tel.: mail@intersentia.be African Perspectives on Tradition and Justice Tom Bennett, Eva Brems, Giselle Corradi, Lia Nijzink and Martien Schotsmans (eds.) 2012 Cambridge Antwerp Portland Cover photo: People gossip and smoke waiting for the sun to come out, Chencha Village, Southern Ethiopia ( Marcin Bartosz Czarnoleski/Dreamstime.com) ISBN NUR 828 British Library Cataloguing in Publication Data. A catalogue record for this book is available from the British Library. No part of this book may be reproduced in any form, by print, photoprint, microfilm or any other means, without written permission from the publisher.

3 ACKNOWLEDGEMENTS This publication was completed in the framework of the research project Addressing Traditional Law in Post-Conflict Legal and Judicial Development Aid in sub-saharan Africa, with the financial support of the Belgian Ministry of Science Policy within its programme Society and Future 2007 [TA/00/17 AFTRALAW]. The editors wish to express their gratitude to the programme administrators, Mrs. Margarida Freire, and her predecessor, Mrs. Zakia Khattabi, for their enthusiastic support to the project. They also wish to thank Dr. Marleen Renders for her role in designing the research project and the members of the Scientific Support Committee for their valuable inputs and critical comments as the project moved on: Mrs. Lara Deramaix, Prof. Marie-Claire Foblets, Mr. Renaud Galand, Prof. Em. Luc Huyse, Mr. Robert Olbrechts, Prof. Barbara Oomen, Mr. Dick Oosting, Prof. Stephan Parmentier, Prof. Filip Reyntjens, Mrs. Heidy Rombouts, Dr. Stef Vandeginste, Mr. Marc Van Wymeersch and Mr. Pierre Vincke. The authors of the chapters especially deserve our thanks for accepting our invitation to contribute to the volume and for addressing our comments and adjusting their chapters accordingly. Finally, our thanks are due to the University of Cape Town for the organization of the international forum Traditional Justice and the Role of External Actors in sub-saharan Africa in March 2010, which planted the seeds out of which this publication grew. v

4 CONTENTS Acknowledgements v About the authors and editors xi Chapter I. Introduction Giselle Corradi and Martien Schotsmans Background to the Volume Historical context and current approaches Traditional justice and development in Africa The localisation of transitional justice The contributions Common themes Bibliography Chapter II. Access to justice and human rights in the traditional courts of sub-saharan Africa Tom Bennett Introduction The traditional African style of justice Due process of law Equal treatment Rights in criminal proceedings The civil/criminal distinction Due process in criminal proceedings The presumption of innocence Legal representation Access to justice Conclusion And the right to culture Bibliography Chapter III. Courts and the application of customary law in Malawi: Towards the reintroduction of local courts Kenan Tilombe Manda Introduction Historical background vii

5 Contents 3. The structure of the Malawi court system since The application of customary law Problems in the magistrate courts Developing customary law jurisprudence The recommendations of the Malawi Law Commission The structure and positioning of the new local courts Presiding officers and assessors Jurisdiction Conclusion Bibliography Chapter IV. Powers, rights and citizenship: The return of the traditional authorities in Mozambique Maria Paula G. Meneses Introduction Tradition, between the past and the future Civilization, culture and citizenship in the colonial context Nationality and citizenship: toughening the abyssal line Highlights of colonial administrative reforms Old and new actors in the political fabric of independent Mozambique Amplifying the plural network of justices The return of old actors Contemporary political implications of legal pluralism Bibliography Chapter V. Traditional justice and human rights in post-war African countries: Prospects and challenges Joe A.D. Alie Introduction Confronting the justice challenge Is traditional justice the answer? Characteristics The human rights question The Sierra Leone conflict Justice and reconciliation from below Reintegration and reconciliation of ex-combatants Community reconciliation Philosophical expressions that are germane to the reconciliation process viii

6 Contents 8. Conclusion: The future of traditional justice Bibliography Chapter VI. Reinventing and validating the cosmology and ontology of restorative justice: Hermeneutics of the traditional Acholi justice system in Northern Uganda Daniel Komakech Rationale of the study: Contextualizing the assumptions and traits of justice in transitional justice Introduction The thesis and outline of the chapter Central argument Methodology Live and let live: A critique of dominant modernist justice in transitional justice discourse Introduction The modernist critique of tradition The modernist epistemology and retributive justice The ICC and retributive justice in the Northern Uganda armed conflict The resurgence of the traditional justice system in Northern Uganda The notion of tradition in the Acholi community Reconstructing and validating tradition: A hermeneutics Acholi cosmology and ontology: Tempels framework Cosmology and ontology among the Acholi of Uganda The ontological hierarchy Reconciliation and restoration in Acholi Acholi traditional justice and human rights Acholi understanding of human rights The Acholi concept of rights being natural and communal Duty and responsibility in human rights Reliving Acholi traditional justice mechanisms: Plant Acholi in an Acholi garden The Acholi concept of dano as a framework for reconciliation Justice and systemic thinking: Returning the ICC to the classroom Conclusion Bibliography ix

7 Contents Chapter VII. Revisiting the legal and socio-political foundations and (Western) criticisms of gacaca courts Felix Mukwiza Ndahinda and Alphonse Muleefu Introduction Legal and socio-political underpinnings of gacaca courts 2.1. Prosecuting genocide cases in post-genocide Rwanda Motivations for the establishment of the gacaca courts Socio-legal dimensions Socio-political considerations Socio-cultural motivations (Western) criticisms of gacaca courts Non-inclusion of RPF/A crimes in the gacaca process Non-compliance with due process guarantees Lack of judicial independence Conclusion Bibliography x