Formal and informal justice in Liberia

24 janvier 2018Wathinote amélioration de la justice

Author (s): Pewee Flomoku and Counsellor Lemuel Reeves

Date of Publication: 2012

Published by: Conciliation Resources

In this article, Pewee Flomoku and Counsellor Lemuel Reeves from the Carter Center describe their organisation’s experiences in promoting justice in post-war Liberia, in particular in linking traditional and formal justice systems. The justice system that President Ellen Johnson Sirleaf inherited when she came to office in 2006 was in tatters. Particularly in rural areas, police and magistrates were largely unpaid and unregulated, and were often operating in their own interests.

A critical peacebuilding challenge for Liberia has been to build its citizens’ trust in the justice system – to persuade them that it acts in people’s interests. In recent years, much work and international support has gone into improving the formal justice system: training judges, magistrates, prosecutors and public defenders; renovating court buildings; and regularising salaries.

But the benefits of these reforms have so far been slow to trickle down to ordinary citizens, especially those beyond the capital, Monrovia. In the absence of strong oversight mechanisms, there are no guarantees that corrupt practices will change. Rural Liberians pursue justice almost entirely through traditional means. A 2008 survey by Oxford University [see Further Reading] found that rural citizens took only four per cent of criminal cases and three per cent of civil cases to the formal courts.

Chiefs, elders or spiritual leaders resolve disputes based on widely accepted cultural paradigms. But some traditional approaches are at odds with formal mechanisms, and can be highly controversial. A rape may traditionally be ‘talked through’ because it is seen as a problem between families and it is for the perpetrator and his family to make the victim and her family whole again; this can include payment, or sometimes even marrying the victim. The statutory system, by contrast, sees rape as a crime against the individual, which requires individual punishment.

When the newly elected government took power in 2006, the rule of law was so weak in most rural areas that an immediate priority for the Ministry of Justice (MOJ) was to educate citizens on how the law should be implemented, as well as to teach people about important reforms such as amendments to law governing rape and changes to the inheritance law to allow women in customary marriages to inherit property.

Strengthening Community Institutions

Most Liberians still rely on traditional justice. But its structures have been weakened over time and by the war. A lack of resources and unclear mandates have undermined the ability of chiefs and elders to resolve local disputes. Some traditional practices are inconsistent with national laws and international standards. Trial by ordeal, in which guilt is determined or confession elicited through sometimes harmful practices informed by traditional beliefs, is one example. Certain approaches to rape, as mentioned earlier, are another.

Where there are conflicts between traditional practices and the law, the Carter Center’s approach is to explain the law and the reasoning behind it, and to facilitate a respectful discussion on the pros and cons of each approach. This enables problem solving and mutual understanding. Rural leaders often ask: if you take away our way of determining guilt and innocence, what will you replace it with? This is a very challenging question, where the idea of evidence-based due process is largely alien and the necessary tools, such as police and courts, may be inaccessible due to distance, cost, or mistrust. County Dispute Resolution Monitors have developed guidelines to work with chiefs when approaches to the law are in conflict.

The Carter Center is helping to build the dispute resolution capacity of traditional leaders, women and youths at the national, county and district levels in a manner consistent with Liberian law. It has used dialogue and training to introduce traditional leaders to new laws and dispute resolution approaches that promote inclusion. It also provides modest financial support.

The approach has been extremely effective in energising the country’s first line of justice providers so as to strengthen community and inter-communal problem-solving and healing, even as rural citizens wrestle with the challenges of land disputes, changing gender roles, and the legacy of the war. For example, following an outbreak of mass violence in Voinjama, Lofa County in February 2010 between youths of Lorma and Mandingo ethnicity, the National Traditional Council was able to bring together Mandingo and Lorma elders from the area and reach agreement on how to restore peace. In Bong County in December 2010, a village elder used the mediation skills he had learned through Carter Center training to resolve a 50-year-old land dispute between the Zaye, Queekon and Tonnie communities. In this case, which concerned approximately 500 acres of land, each party claimed that the other was ignoring an agreed traditional boundary and was growing crops on land they did not own. Following mediation, the disputants worked together to demarcate a new boundary, and agreed to share a common agricultural space.

The Carter Center’s experience suggests a number of recommendations for policymakers in Liberia and other post-conflict environments.

First, focus on community-based legal empowerment, including educating local people about their legal rights and options and capacitating existing community structures. Community justice can be a locally legitimate and cost-effective means of providing marginalised citizens with ownership of and access to justice. It is more effective to work with home-grown dispute resolution mechanisms accepted by communities than to create new ones. Timeliness is also an important factor. Building and embedding formal justice is a long-term endeavour, while societal divisions and fragility in the aftermath of war makes fast and functional conflict management a priority. Working toward accessible local justice can provide a tangible ‘peace dividend’ to neglected populations.

Second, support dialogue processes between the formal and traditional justice sectors to build synergies and a shared understanding of an agreed legal framework. Existing justice practices need to be harmonised with the country’s governance reform programme and international commitments. Most importantly, justice processes that are accepted and employed by local populations must be developed.

Third, promote civil society participation in and oversight of local judicial reform processes. The CLAs’ work shows that civil society groups are often trusted more than statutory or customary justice providers. CSOs are an important resource for policymakers fighting local level corruption. Civil society and community involvement will also help to build people’s trust in governance more broadly and to reduce the sense of exclusion that has been a root cause of conflict.

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