Legal pluralism in post-colonial Africa: linking statutory and customary adjudication in Mozambique.

• Author: Pimentel, David

INTRODUCTION

Legal pluralism--defined as a situation in which "more than one legal system operate(s) in a single political unit" (1)--is a practical reality in a large number of countries in the world, most notably in the post-colonial states of Africa. These newly-independent states are grappling with how to preserve the cultural heritage reflected in their customary law and institutions, (2) even as they attempt to function as modern constitutional regimes. (3) Many of their constitutions preserve a role for customary law or recognize the inevitability of legal pluralism in the state. But few have found a functional and effective way of implementing legal pluralism or, more specifically, defining the relationships between the pluralistic institutions.

This Article attempts to define the challenges and opportunities associated with linking statutory and customary adjudication. In order to assess the various approaches to the problem, it is necessary to evaluate the appropriate goals and purposes of legal pluralism, distinguishing the motivations of many who have exploited pluralistic systems for their own self-interest. It is also necessary to recognize and preserve the virtues inherent in customary systems, which have been historically undervalued as "primitive," and remain under attack by those who see them as a threat to the protection of human rights.

Striking these balances to implement legal pluralism in Mozambique presents serious, but by no means unique, challenges. Mozambique's current situation serves as a case in point for application of the principles developed in this Article.

The best approach for Mozambique and other similarly situated states will be to maximize the role and independence of customary law and the institutions that apply it. Balances will have to be struck to ensure that human rights are not unduly compromised as a result. Such balancing will require a procedure by which customary court decisions can be reviewed for consistency with constitutional protections. This review can be accomplished without giving statutory courts jurisdiction to interpret and apply customary law. This will allow the customary law, and its application, to remain solely the province of traditional authorities, where it can continue to function as a vital and highly adaptive foundation for rural society.

The Article proceeds in five Parts. First, it introduces the concept of legal pluralism and discusses its inevitability. Second, it explores the various uses of legal pluralism, the opportunities it presents, and the both positive and negative agendas it serves. Third, it identifies three different conceptual approaches to legal pluralism, critiquing each and suggesting a productive reconciliation of them, aimed at realizing the benefits and minimizing the negative aspects of legal pluralism. This third section includes a specific procedural approach to reconciling the conflict between respecting indigenous culture and promoting human rights. Fourth, it explores the often-overlooked issue of jurisdiction, fundamental to the structure of a legal pluralism regime. It surveys options and approaches, and analyzes the implications of each for legal pluralism. Finally, it proposes an application of these principles to the country of Mozambique primarily as a case in point. Like many post-colonial states, Mozambique formally recognizes customary law; and like almost all of them, it has a constitution with a Bill of Rights. In addition, it retains the remnants of the Portuguese legal regime and its post-colonial experiment with socialism, further enriching the pluralism at play. This makes it an ideal example to illustrate the application of these principles. But this discussion is meaningful not only for Mozambique. The theory and proposal should be applicable, mutatis mutandis, throughout post-colonial Africa, and should be worthy of consideration wherever indigenous justice is practiced.

1. LEGAL PLURALISM: A CONTEMPORARY REALITY

   In any society, and any state, the legal system will reflect a melange of doctrines, institutions, and practices reflective of that country's history, culture, and politics. In many countries, these eclectic influences have been harmonized into a unitary system of justice.

   The common law, after all, could be characterized as a type of customary law, uncodified, and evolving as it was applied. Over time, the common law has gravitated toward a statutory tradition, with the overwhelming majority of legal standards and rules coming from codes rather than cases. (4) The customary, common law tradition is still meaningful, mostly providing the backdrop for the application of codes, filling the gaps in the law, and providing a basis for judicial interpretation of statutes. (5) But most common law states now apply statutory law, born of and influenced by the customary roots of the common law, and fully harmonized with it. (6)

   But where the harmonization has not occurred--as in many postcolonial states--the tensions created in the intersection of inconsistent, even competing, systems are acute. In most African states, the key tensions arise between a statutory system, a creation of legislation, and the more organic customary or traditional systems, each with unique laws and institutions to enforce them. For purposes of this Article, the term "customary law" is used to describe these systems. It is defined as unwritten law, retained by oral tradition and by acceptance and observance by the community or society to which it applies. (7)

   There is nothing inherently wrong with legal pluralism, (8) and certainly nothing new about it. The concept is ancient, having been an issue wherever competing societies have overlapped, including undoubtedly the earliest instances of conquest and occupation. (9) It has always proved easier to govern a conquered people according to their own laws. (10)

   In Mozambique, the historical and political milieu is particularly rich. The legal system is influenced not only by traditional or customary law and Portuguese colonialism, but also by the post-independence socialist regime and, after the latter's collapse, its abrupt replacement with a new capitalist democracy. (11) Various legal institutions have survived this history, including hybrid institutions such as the community courts, (12) created by statute but not otherwise funded or governed by state organs. To the extent these divergent doctrines, institutions, and practices persist today and coexist unhomogenized and unharmonized, Mozambique already functions as a legally pluralistic society.

   Formal recognition of legal pluralism, moreover, legitimizes traditional systems, validating the cultural values that underlie them. Indeed, Mozambique has chosen to embrace legal pluralism in its new Constitution of Mozambique, adopted in 2004. Article 4, entitled "Legal Pluralism," and also Article 212(3) specifically contemplate linking statutory courts and non-state dispute resolution fora:

   Article 4

   Legal Pluralism

   The State recognises the different normative and dispute resolution systems that co-exist in Mozambican society, insofar as they are not contrary to the fundamental principles and values of the Constitution....;

   Article 212

   Jurisdictional Function

   (3) The law may establish institutional and procedural mechanisms for links between courts and other forums whose purpose is the settlement of interests and the resolution of disputes. (13)

   These provisions are not particularly remarkable, as similar provisions exist in a number of other African Constitutions. (14) Moreover, the specifics and the mechanics of how "different normative and dispute resolution systems" can co-exist and function in a modern state is nowhere articulated in Mozambique, other than to allow the "law" to establish them. (15)

   Given these constitutional provisions, the question is not whether Mozambique, and so many of its neighbors, should operate under a system of legal pluralism--indeed, pluralism is deemed inevitable, even desirable. The remaining question, as yet unanswered, is how that regime should be structured and implemented and, specifically, what linkages should and must be established between the customary and statutory systems. To answer that question, it is necessary to understand why legal pluralism is important and what societal values it represents.

2. THE WHY OF LEGAL PLURALISM

   1. Legal Pluralism and the Rule of Law

      A sound, stable, and predictable legal system might be characterized as one that reflects the rule of law. Often mentioned with reference to its value in fostering economic development, discussed separately below, (16) rule of law also incorporates much broader, less tangible values: peace, security, equity, justice, and the protection of basic human rights. A key perspective, for purposes of this discussion, focuses on the role of legal pluralism in the establishment of the rule of law in the post-colonial society. (17) Notoriously difficult to define, "rule of law" has been characterized as:

      [A] state of affairs ... in which most people, most of the time, choose to resolve disputes in a manner consistent with procedurally fair, neutral, and universally applicable rules, and in a manner that respects fundamental human rights norms.... [T]his requires ... a widely shared cultural and political commitment to the values underlying [its] institutions and codes. (18) Consistent with this, the rule of law demands regularity and predictability, as well as the resort to official dispute resolution regimes to manage conflict, rather than vigilantism or private retaliation.

      Access to justice is a major rule of law deficiency in many post-colonial African states. Large populations in these countries have no means of getting to urban centers where statutory courts are situated. (19) Even if they can get to the city, few can afford the representation or legal advice that may be necessary to navigate the formal...