Governability and forms of popular justice in the new South Africa and Mozambique: community courts and vigilantism.

• Date: 22 March 2004
• Author: Bidaguren, Jokin Alberdi,Nina, Daniel
• Published date: 22 March 2004
• Author: Bidaguren, Jokin Alberdi

1. Introduction

   THIS ARTICLE ANALYZES PROBLEMS OF GOVERNABILITY IN THE ADMINISTRATION OF justice in Mozambique and South Africa by exploring various experiences of popular justice that continue to exist in the new democratic contexts of these countries. The weakness of the South African and Mozambican states is reflected in their judicial systems. In spire of democratic reform, most citizens of these countries, particularly the less well off, have no guaranteed access to justice. This weakness of the state in terms of guaranteeing order and security long since prompted a response from society. In the current context of representative democracy, a distinction may be drawn between (1) responses that directly call into question the legitimacy of the new states (fundamentalist religious groups such as People Against Gangsterism and Drugs, organized crime, vigilante groups, and other ways of taking justice into one's own hands) or that contribute to the breakdown of society and the state; and (2) those that accept the new constitutional framework and respect human rights (some community courts, religious courts, traditional authorities, and legal assistance projects for conflict resolution set up by various nongovernmental organizations).

   In this article, we first provide a context for the current links between society and the state in Southern Africa. We consider theoretical points concerning the consolidation of the state, such as the governability crisis, the globalization of democratic and judicial systems, weak fragile states, and the construction of collective identities in multicultural contexts. Then we look at problems of access to justice in Mozambique and South Africa in terms of the lack of financial and human resources (a characteristic of fragile states) and how ill suited Western legal traditions are to the various conflict-resolution practices of the different communities in these countries. Next, we consider different cases to draw a distinction between responsible community justice and systems that the state should attempt to eliminate. Finally, we stress the need for a redefinition of the values and principles of these states from a transcultural, "non-standardizing" perspective that can help to integrate the values and concepts of African cultures into their legal systems.

   There are two main trends in the study of relations between society and the state in Africa: the modernist view, which tends to consider civil society as marginal and embryonic on the continent, and the communitarist view, which stresses that civil society is marginalized in public affairs. A second core area is the debate between the liberal system, which places politics within civil society and stresses a regime based on rights, and the "Africanist" system, which holds that the solution lies in making the old communities the center of African politics and in defending local culture.

   The impasse generated by the differences between modernists and communitarists, between Eurocentrics and Africanists, cannot be broken by siding with and defending the stance represented by either of these views, because each represents a different aspect of the African dilemma. The solution lies rather in arguing them into a synthesis that can transcend both stances (Mamdani, 1996).

   In our opinion, if more in-depth knowledge is to be achieved concerning African politics, we must transcend procedural and institutional analyses to include the intercultural, historic dimension. We believe one of the core areas in the advancement of democratic ideas is the ability to imagine that it is possible to create genuinely new institutions based on the diversity of cultural practices and institutions of the non-Western world (Markoff, 1996).

2. Links Between Society and State in Africa

   The Governability Crisis and Globalization of Democratic and Judicial Systems

   In its 1992 report, the World Bank stated that the failure of adjustment policies in some African countries could be explained by a lack of responsibility, transparency, and forecasting ability on the part of African politicians and bureaucrats, by the absence of the rule of law, and, in short, by "poor governance." Aid and funding in the form of foreign investment and international cooperation were made conditional on the setting up of structural adjustment policies and on "good governance." Ideological convergence on the idea of representative democracy and a particular form of the state was recovered and, some authors maintain, spread throughout Africa in the 1990s thanks to the domino effect, contagion theory, and political conditionality. (1)

   The dominant concept of democracy was that which attempted to make it compatible with capitalism. In this context, the main role of the judicial system is to guarantee the stability of economic transactions, social peace, and improvements in the administrative abilities of the state. The legal system atomizes the social conflicts arising from inequalities of distribution that are the product of that global capitalism. Collective organization and action are thus broken up (Serra, Trindade, and Santos, 2000).

   Supporters of the Washington Consensus hold that reform of the judicial system is an essential part of the new model of development, and an indispensable basis for good governance. As a result, along with the neoliberal economic consensus, the weak state, and the liberal democratic system, the World Bank (2) and other agencies (3) have given absolute priority to reforms in the judicial systems of various countries around the world. The judicial reform encouraged by these agencies is limited to guaranteeing free operation of the market. The problems of active participation in, remoteness from, and mistrust of the judicial system on the part of ordinary people and the lack of any adaptation of Western legal traditions to a multicultural reality are left as marginal issues on the agenda of reform.

   The South African judicial system played a leading role in the construction of the post-apartheid political order by refusing to continue the basic principles of the justice system, politics, and legislation of the previous racist regime (consider, for instance, the work of the Truth Commission). The judicial system is being reformed with internal funding and has proved to be effective in company litigation.

   The situation is very different in Mozambique, which, unlike its neighbor, has received considerable external aid. (4) After the drawing up of the constitution in 1990 and the signing of peace agreements between FRELIMO (Front for the Liberation of Mozambique) and RENAMO (Mozambique National Resistance), the judicial system was on the point of collapse. The new Supreme Court became the driving force for change in judicial matters and sought support from international agencies while trying to protect itself from any intrusion by external political conditioning factors through creative, pluralist proposals.

   In spite of these differences, the process of legal reform of the judicial apparatus in the two states has come up against certain common problems:

   * Many people have no guaranteed access to formal justice. State law does not necessarily have to be the predominant legal system.

   * The new state judicial system must take a stance regarding community justice structures based on indigenous and popular tradition, which enjoy social legitimacy.

   * Both states must deal with violent forms of popular justice that call into question the legitimacy of the state and hinder the process of consolidating democracy.

   Judicial reform implies fundamental changes. (5) The courts and judges of South Africa and Mozambique must be capable of settling conflicts between two multinational companies based on Western legislation, and at the same time offer solutions to cases of witchcraft and marital disputes that are adequate for their own social, ethnic, cultural, or religious contexts.

   The Criminalization of the State and the New Forms of Social Power

   The Criminalization of the State: In terms of our Western notions of political modernity, the state has failed in contemporary Africa. Various interpretations on this matter can be found. Bratton and van Walle (1997) point out that authority tends to become personalized (presidentialism) and state resources are used for political legitimization, drawing no distinction between public and private assets and personal favors (clientelism). Some authors (Smith, 1986; Bayart, Ellis, and Hibou, 1999) have remarked that the appearance of authoritarian states after the period of independence of former colonies is explainable mainly in terms of domestic factors. Numerous African social groups have built up their strategies and profited on the basis of a situation of continued dependence (from the time of the slave trade through the Cold War period to the colonial period, and even in these years of structural readjustment).

   According to Chabal and Daloz (1999), the crisis of modernity in Africa seems to be explained by a process in which African political figures seek to maximize their gains (patrimonialism) in a state of confusion and uncertainty (political instrumentalization of disorder). In their opinion, the state is not structurally differentiated from society. These authors (6) criticize positions that abuse the notion of civil society and maintain that African social movements have the capability and potential to carry out political reform.

   In opposition to these neo-utilitarianist or patrimonialist analyses of the state, other more regulatory approaches have been put forward that have chosen to focus on studying society. Mamdani (1996) criticizes all the literature on corruption and patrimonialism because its ahistoric analogies take the key debate on redistribution out of context. He insists that society and the state remain under the "institutional" legacy of colonialism. In his opinion, society has not managed to make the...