Abstract
ABSTRACTSince the early 2000s, legal development cooperation has displayed an increasing willingness to engage with customary justice systems. However, this engagement is frequently problematic. External actors often lack knowledge about the different versions of customary law, the negotiable nature of customary justice and the power differentials involved in defining customary law. In customary justice systems, norms are defined and negotiated in administrative structures and dispute‐settlement institutions. Inclusion in these fora is therefore of paramount importance to improve the position of vulnerable groups. To illustrate the point, this article analyses two case studies of customary justice reform, respectively focusing on gender dimensions in northern Namibia and land management in Ghana. These case studies demonstrate that when programming ignores issues of power and empowerment, it will not have the hoped‐for positive impact on vulnerable groups.
Highlights
Development practitioners involved in ‘rule of law’ building projects recently accepted the importance of customary justice systems (CJSs) for the majority of rural inhabitants in the global South
The Namibia research described in this article resulted from a research cooperation with the International Development Law Organization (IDLO), which was generously funded by the Bill and Melinda Gates Foundation
The negative assessment of Land Administration Programme (LAP) was shared by the donors, as evidenced by the fact that, in August 2009, DFID withdrew its financial support to the Customary Land Secretariats (CLSs)
Summary
Development practitioners involved in ‘rule of law’ building projects recently accepted the importance of customary justice systems (CJSs) for the majority of rural inhabitants in the global South. This requires paying attention to issues of representation and participation of marginalized community members in CJSs, and their ability to make use of these systems to uphold their rights and obtain outcomes that are fair and equitable To illustrate this point, this article analyses two case studies with very different approaches to reforming CJSs. In the first case study, Uukwambi Traditional Authority (TA) in northern Namibia tried to enhance the role of women in the CJS. This article discusses debates in the field of legal development cooperation on effective programming and the merits of top-down versus bottom-up approaches, focusing on state justice mechanisms versus customary justice mechanisms Thereafter, it presents the two illustrative case studies of gender and land customary law reform in Uukwambi and Ghana, and an analysis of the resulting (lack of) empowerment of marginalized groups.
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