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

• DOI: http://doi.org/10.1111/lasr.12298
• Date: 01 December 2017
• Published date: 01 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: jubink@law.uci.edu.

Law & Society Review, Volume 51, Number 4 (2017)

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C2017 Law and Society Association. All rights reserved.

825

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

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