Towards Customary Legal Empowerment

Abstract

This paper discusses the new donor engagement with customary legal systems and their attempts to overcome a number of negative aspects of such systems so that they function better for marginalized groups in the communities they govern, safeguard human rights, and become more suited to modern day economic structures. Donors display two general approaches for facilitating improvements in customary justice systems: institutional approaches, stimulating linkages between customary and state justice systems, and community-based activities directed at citizens governed by customary justice systems. Institutional approaches struggle to find a careful balance between retaining the informal character, local accessibility and legitimacy of the customary justice system, while at the same time making sufficient change to reform its operation. Community-based activities are less prone to upset this balance as they are unlikely to fundamentally alter the set-up of the customary justice system. Instead, they change its functioning by involving state norms and institutions or by inducing change from within the customary system itself. The distribution of power plays a vital role in improving the functioning of customary justice in both approaches. Bottom-up legal development approaches stress the importance of dealing with the fact that law and power are intrinsically linked, expressing this most clearly through the concept of ‘legal empowerment’. Addressing problems in customary justice systems requires a particular kind of legal empowerment - ‘Customary Legal Empowerment’ - defined as processes that (1) enhance the operation of customary justice systems by improving the representation and participation of marginalized community members and integrating safeguards aimed at protecting the rights and security of marginalized community members and/or (2) improve the ability of marginalized community members to make use of customary justice systems to uphold their rights and obtain outcomes that are fair and equitable.