Courting Custom: Regulating Access to Justice in Rural South Africa and Malawi

Date01 December 2017
Published date01 December 2017
Courting Custom: Regulating Access to Justice in
Rural South Africa and Malawi
Janine Ubink Sindiso Mnisi Weeks
The continued relevance of customary law for the regulation of the daily lives
of Africa’s citizens poses seriousgovernance challenges to sovereignstates, such
as how best to regulate customary dispute settlement. While confronted with
largely similar problems, the South African government proposed to enhance
and regulatethe position of its traditional courts,whereas Malawi has opted for
the creation of hybrid local courts that combine characteristics of regular state
courts and customary forato be the main avenue of customary law cases. This
paper analyzes the strengths and weaknesses of both approaches and displays
how the two countries’ historical and political contexts enable and constrain
their regulatory choices in the field of customary dispute settlement, as well as
influence the riskand benefits of the various options.In this respect, the politi-
cal power of thetraditional leaders is a significant determinant.
Recent decades have demonstrated the continued relevance of
customary law for the regulation of the lives of Africa’s citizens.
Most of these citizens navigate family relations, access to natural
resources, and settlement of disputes through customary law as
administered by family heads, elders, and traditional leaders. The
state legal system is often a much less direct instrument of gover-
nance in their lives. Statutory laws are less well known, state
courts harder to access, and attempts to enhance knowledge,
access, and preeminence of state law institutions have often had
limited impact. As a result, recent decades have witnessed a re-
evaluation of customary justice systems and a resurgence of tradi-
tional leadership (Englebert 2002: 51–64; Mnisi Weeks 2015;
Oomen 2005: 1–9; Ubink 2007; Ubink and Van Rooij 2011).
The prevalence and relevance of non-state justice systems
pose serious governance challenges to sovereign states. How to
The research in Malawi was made possible by a generous grant from the Netherlands
Organization for Scientific Research (NWO) VENI grant program for the project
“Customary Legal Empowerment: A new approach to improving women’s property
rights” (Project No. 016.125.253). The research in South Africa was conducted under the
auspices of the Rural Women’s Action-Research Programme at the University of Cape
Town. Our gratitude goes out to Victoria Huwa for research assistance, to Christa Rauten-
bach for feedback on earlier drafts.
Please direct all correspondence to Janine Ubink, UC Irvine School of Law, 401 East
Peltason Drive, Irvine, CA 92697-8000; email:
Law & Society Review, Volume 51, Number 4 (2017)
C2017 Law and Society Association. All rights reserved.
effectively govern a country where each locality has its own
norms, leadership structures, and dispute settlement institutions;
where many relations and rights are regulated by customary law?
This partly is a question of which customary rights, positions, and
entitlements to recognize, but also of which fora will have the
power to decide on such issues. This article focuses on the latter
question, and discusses two different approaches taken by African
countries to the challenges their governments discern in regulat-
ing customary dispute settlement.
In the first approach, the government recognizes or formalizes
the highest level or levels of traditional dispute settlement institu-
tions. Thus formalized, these customary courts—operating under
various names such as traditional courts, customary courts, or com-
munity courts—may for instance, be permitted to make use of the
state machinery for the enforcement of their summons, decisions,
and sanctions. At the same time, formalized customary courts may
be required to administer justice in accordance with certain proce-
dural and substantive standards. Parties that are dissatisfied with cus-
tomary courts’ decisions can appeal at least some of these decisions
to state courts. This opens up possibilities for state courts to oversee
the adjudicative work of customary courts, as well as for the develop-
ment of checks and balances that can ensure adherence to proce-
dural and substantive standards. Such a system has for instance,
been introduced in Namibia (Peters and Ubink 2015), Botswana
(Kumar 2009), and Nigeria (Bello et al. 2009; Okafo 2009).
Success of this approach depends on the responsiveness of
customary courts to the new standards; whether citizens will find
their way to state courts; the extent and manner in which state
courts undertake their role as checks on customary courts, and
the extent to which state court decisions impact customary
administration and dispute settlement. Related concerns are
whether formalization gives too much power to traditional lead-
ers, for instance in the field of sanctioning, and whether it inhib-
its citizens from opting out of the customary justice system, which
can be particularly detrimental to the position of minorities and
women. These worries are compounded by the fact that custom-
ary courts often do not allow legal representation.
A second approach found in African countries is to opt for
some kind of hybrid institution that combines characteristics of
regular state courts and customary fora to be the main avenue of
customary law cases. These hybrid courts are presided over by
lay judges, with or without strong ties to local traditional authori-
ties; they apply customary and statutory law and make use of
simplified procedures and local language. They can have
recourse to the state machinery for enforcement and appeals go
to regular state courts. This type of court is meant to enhance
community members’ participation in and access to the state
826 Regulating Access to Justice in Rural South Africa and Malawi
judicial system while diminishing the caseload of regular state
courts. They can provide an alternative to, and check on, unrec-
ognized traditional dispute settlement fora and develop jurispru-
dence regarding customary law, overseen by regular state courts.
The creation of new hybrid courts to deal with customary law
cases furthermore allows for the formulation of procedural and
substantive standards these courts are to follow, and for the set-
ting of certain qualifications for the judges, such as educational
standards and language proficiency. Examples of hybrid courts
are Eritrea’s community courts (Andemariam 2011) and Zambia’s
local courts (Afronet 1998).
Success of hybrid courts depends on whether these new insti-
tutions are able to establish themselves as legitimate institutions
with knowledge and authority in the field of customary law that
operate impartially and independently from the executive, the
local traditional elite, and other local interests. That will determine
not only whether they are able to attract local disputants but also
to what extent their decisions have an impact on the decision mak-
ing of traditional dispute settlement institutions in their geographi-
cal area. In addition, it remains a question whether courts strongly
associated with customary law, where traditionally the male gender
takes center stage, will be sufficiently able to include female judges.
This problem may be compounded when traditional leaders are
given an advisory role in the selection.
Scholarship increasingly highlights political and governance
aspects of legal pluralism (Kyed 2009; Von Benda-Beckmann
et al. 2009). As the justice system is an important governance
instrument, its regulation is closely linked to questions of political
power, control, subjugation, integration, and exclusion (Roberts
1994). Authority and rights are interconnected and “the ability to
establish political power runs through the capacity to determine
who can be a rights subject, and what rights can be enjoyed”
(Lund 2016). Both policies of recognition of customary norms
and institutions and the creation of new hybrid institutions will
inevitably entail a reordering of authority and power (Von Trotha
1996; Weilenmann 2005: 5). Kyed (2009), in a study of post-war
Mozambique, points out that the official discourse of simple,
benign recognition of existing customary norms and structures
masks aspects of state intervention, regulation, and reform.
As scholarship has shown, similar processes were the hallmark
of colonialism: the customary law colonial powers “recognized”
was in fact a new hybrid, a product of struggles between the colo-
nizer and the colonized. Additionally, indirect rule policies
severely distorted local checks and balances and accountability
structures when colonial governments overrode traditional rules
of investiture and reserved for themselves the right to appoint
Ubink & Mnisi Weeks 827

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