Traditional Justice Mechanisms Research Articles

The Missed Opportunity to Africanise the International Criminal Court: An Appraisal of the Case of Prosecutor v Dominic Ongwen

More than twenty years have passed since the establishment of the International Criminal Court (ICC), by means of the Rome Statute (ICC Statute). Of the 120 states, thirty-three are from the African continent. The ICC is often perceived as being Eurocentric and retributive in nature. This is because it is often insensitive to cases from the African continent. The case of Prosecutor v Dominic Ongwen, which is the focal point of this article, illustrates this point. Ongwen, a former child soldier who became a warlord in the Lord’s Resistance Army committed numerous crimes under international law and was sentenced to twenty-five years imprisonment. His case was complex and required a wider approach than the retributive position adopted by the ICC. African traditional justice mechanisms were generally overlooked. This article resents this approach taken and proposes that the ICC should have taken a more Africanised stance in this case. The article aims to contribute to the field of research on the Africanisation and decolonisation of international criminal law.

The Prosecutor v Dominic Ongwen: An Examination of the Role of Traditional Justice Mechanisms in International Criminal Justice

Abstract This paper examines whether traditional justice mechanisms have a place in international trials where the accused has committed core international crimes; through the lens of The International Criminal Court’s approach in the Ongwen case. Trial Chamber ix declined to incorporate the mato oput traditional justice mechanism of the Acholi people of Northern Uganda. The paper argues that although concerns have been raised regarding the application of traditional justice mechanisms in the aftermath of mass atrocities, they can still play a significant role alongside prosecutions for international crimes before international criminal tribunals and the International Criminal Court. It recommends ways in which traditional justice mechanisms can be incorporated into proceedings before the icc and concludes that if the Court is to be a truly universal Court as was envisaged at its inception it ought to holistically consider the issues brought before it, particularly from the Global South.

Accessibility, Independence and Impartiality of the Traditional Court System

A few metrics of procedural indigeneity such as accessibility, expeditiousness, informality, affordability, and lack of “cumbersomeness” account for the traditional court system’s suitability as a system for resolving conflicts among black, poor, marginalised and disadvantaged African communities. As a system that regulates the legal affairs of groups that constitute the majority of the South African population, traditional courts are a perfect instrument for catering for the needs of the mostly unsophisticated black citizens. These qualities by far outweigh the system’s relative weakness when it comes to the attributes of independence and impartiality of its courts, both of which—commendable as they are—are less necessary in a system that is based on communal participation and collective negotiation. Judicial independence and impartiality interpreted and understood in relation to the Western concept of the separation of powers is alien to the customary legal system. Traditional courts are community-based, characterised by open justice, and designed to settle disputes in their defined areas of jurisdiction. They were established from time immemorial for such purpose and, to further its colonial objectives, the colonial government recognised them through the enactment of the Black Administration Act, 38 of 1927. There was a complete disregard for the views of the adherents to customary legal systems when legislating on the system and people's lives. The promulgation of such an Act brought about legal dualism in South Africa: common law and customary law. The Black Administration Act was enacted to administer the affairs of blacks and control the administration of traditional institutions and courts. The Black Administration Act discriminated between litigants based on race and dispensed inferior justice to blacks. During the apartheid system, various discriminatory laws were promulgated, resulting in the establishment of homelands and independent states within South Africa. This gave rise to disparate laws governing black people and their court system. The Constitution and the legislation specifically dealing with the customary legal system have ended discriminatory laws and social order that characterised colonialism and apartheid. Traditional courts are well-placed to create, enhance, and facilitate access to courts for all people, regardless of race, colour, gender, or any socio-economic diversity. This article intends to outline the effectiveness of the traditional system and to also address criticisms levelled at the traditional legal system, based on variations in practice and alleged exclusion of women from traditional justice mechanisms. These criticisms can be addressed effectively by traditional court systems aligned and dedicated to equality, democracy, and human rights protection. They can also be addressed through harmonising, integrating, and unifying customary law, common law, and constitutional values.

Traditional justice mechanisms and reconciliation in Zimbabwe: assessing the benefits

ABSTRACT This article, using documentary evidence and interviews, discusses the benefits of deploying traditional forms of justice as one of the strategies to address the persistent challenge of political violence in Zimbabwe, especially before, during and after election periods. It argues that it is important to recognise the roles traditional leaders play, particularly in creating cultural social spaces, encouraging social harmony and promoting tolerance in communities. Experiences from states emerging from conflict have shown that justice is usually elusive for the victims. Victims are at most left to feel sorry for themselves. It is therefore important to harness the benefits of traditional justice systems in transforming relationships and bringing social change. While traditional justice predominantly favours lower-level offenders, this can prove invaluable in the short to long-term efforts aimed at building peace in affected communities.

Necessary evil: a strategy to manage dysfunctional customer behavior

PurposeThe purpose of this paper is to investigate how and when used by employees influences witnessing customers’ willingness to spread positive word of mouth (WOM).Design/methodology/approachThis research used a qualitative method to develop a typology of necessary evil using two pilot studies and an experimental study to test the theoretical model.FindingsThe results show that the necessary evil used by employees to manage dysfunctional customers positively influences witnessing customers’ perceptions of distributive, procedural and interactional justice and their subsequent deontic justice perceptions, resulting in their willingness to spread positive WOM. Moreover, the positive influence of necessary evil on witnessing customers’ responses is strengthened when dysfunctional customer behavior (DCB) targets another customer as opposed to an employee.Practical implicationsThis research offers service providers a better understanding of how to manage DCBs.Originality/valueThis paper contributes to the existing literature by introducing necessary evil to the service literature, proposing a new typology of employee response strategies to DCB based on necessary evil and examining how necessary evil drives positive customer responses. Additionally, it is among the first to examine the relationship between deontic justice and traditional justice mechanisms.

Legal pluralism as a lens through which to understand the role and place of TJMS in international criminal justice

This article makes a contribution to existing literature by developing a pluralist account for international criminal justice, specifically where there are Traditional Justice Mechanisms (TJMs) at play. This account has the effect of challenging the dominant assumption that TJMs have no place in international criminal justice, in particular, where the option to conduct criminal prosecution is considered. Subsequent to the background section, the second section engages with literature on legal pluralism in international criminal justice. This review constitutes an analytical framework for evaluating the ways in which TJMs can interact with other systems of justice. The third section provides an overview of the Ugandan conflict with a view to demonstrating the multiple approaches invoked in addressing the effects of the conflict in Uganda. The fourth section gives an overview of the scope and nature of TJMs while the fifth section engages with the criticisms leveled against TJMs. In light of the discussion in the fifth section, it is recommended that if TJMs in Uganda are to be properly contextualized and understood, there is a need to interpret the Juba Peace Agreement through a legal pluralism lens. The sixth section engages with the practical ways that TJMs can play a role in criminal proceedings before the ICC and national courts. Overall, the argument advanced is that where the option to prosecute is considered by the ICC, TJMs should, on a case by case basis, play a role within the framework of international criminal justice. Rather than choosing between TJMs and international criminal justice, emphasis should be placed on how TJMs and international criminal justice complement each other.

Social engineering the local for peace

Given the frequent failure of internationally established reconciliation tools, traditional conflict resolution mechanisms are increasingly integrated into transitional justice programmes in order to locally root peace. However, traditional justice mechanisms can be highly ambivalent; they can be, at the same time, inclusive and exclusionary, thus promoting peace or triggering new conflict. In Eastern Indonesia, where the author has conducted extensive field research, local actors took up these challenges and try to adapt local justice mechanisms so that they can cope with mass violence and the reintegration of conflict parties and society. Social engineering is promoted as one solution to the problem. This article looks at various conceptualisations and implications of social engineering – from a top-down authoritarian to a bottom-up participatory approach – and discusses how far this controversial concept and the deliberate adaption of local traditions to new challenges should be taken into account in future peace research and work as well as in anthropological debates.

The Effectiveness of Restorative Justice Practice in Bangladesh: An Analysis

Restorative justice is an innovative movement in the field of victimology and criminology. The formal judicial system of Bangladesh is very expensive and follows a lengthy procedure for the lack of financial resources and outdated legislation pose. Majority of middle class people therefore prefer or rather have no choice but to use the traditional justice mechanisms like restorative justice. This study was an effort to find out how restorative justice could be an effective method for dispute resolution to reduce the backlog and future case loads in Bangladesh. Besides, the core challenges of successful Restorative Justice and some prevention policies to recover drawbacks of the restorative justice in Bangladesh were also studied. As the nature of the research is qualitative in nature, data and information had collected from secondary sources. This study found that, the most important challenge of restorative justice in Bangladesh is the huge backlog of cases, relative ignorance and lack of confidence and legal awareness of the service seekers and providers, lack of monitoring and supervision of the court activities, negative attitudes and perceptions towards legal institutes and absence of legal aid and support. Though the Village Courts have limitations and drawbacks but still it is playing an important role in the settlements disputes and maintaining social peace and tranquility in the rural area. This study argues for the necessary amendments of the village court act, proper monitoring and supervision of the government, resources and preparedness as well as the responsiveness of all stakeholders that can ensure effective restorative justice in Bangladesh.

The Lord’s Resistance Army: Myth and Reality ed. by Tim Allen and Koen Vlassenroot

Reviewed by: The Lord’s Resistance Army: Myth and Reality ed. by Tim Allen and Koen Vlassenroot Laura Seay Tim Allen and Koen Vlassenroot , eds. The Lord’s Resistance Army: Myth and Reality. London and New York: Zed Books, 2010. xi + 356 pp. Maps. Photographs. Bibliography. Index. £19.99/$35.95. Paper. The March 2012 release of the online video titled Kony 2012 by the American advocacy group that calls itself Invisible Children brought global attention to the Lord’s Resistance Army (LRA) rebel group. Critics of Invisible Children were quick to point out the film’s many [End Page 184] shortcomings, including its oversimplification of a complex crisis, the implicit suggestion that there is still active warfare in northern Uganda, and a noticeable lack of African voices in a film ostensibly made to help them. Kony 2012 also overstated the LRA’s current force strength and capacities; far from being the “world’s worst warlord,” as the film called him, Joseph Kony and his forces are significantly smaller and less powerful than they were a decade ago. Moreover, the film’s proposed solution to the LRA crisis—hunting down Kony and either killing him or bringing him before an international court—ignored the fact that previous efforts in this vein have repeatedly failed and even resulted in retaliation against civilians. Global interest in the LRA crisis is at a peak, even as misinformation about the organization, its capacities, and what it would take to destroy the LRA proliferates. This makes the contributions of the authors in The Lord’s Resistance Army: Myth and Reality quite timely. The contributors provide important counterpoints to many popular misconceptions about the movement based on extensive fieldwork and novel research methods. Understanding the logic of Kony’s approach is a key theme of the book and one that those working in the region will find of great interest. Far from being irrational, Kony and the LRA have specific political grievances against the government that are broadly shared in the Acholi population of northern Uganda. Adam Branch shows that the LRA insurgency cannot rightly be understood apart from the broader history of Ugandan ethnic identity politics and from internal political crises in Acholi society. This theme runs throughout the book’s chapters; the LRA is not simply an army of anarchist, lunatic “bad guys,” but is rather a complex movement with political, economic, and spiritual dimensions. Reflecting on her interview of Joseph Kony, Mareike Schomerus observes, “the LRA’s understanding of trust and betrayal, of accountability and culpability, of right and wrong is complex, but not simply unreasonable. Kony denied the atrocities, but what else would anyone expect?” (111). Kristof Titeca furthers this point, showing that spirituality in the LRA serves strategic interests as a mechanism for keeping the movement unified and disciplined. Other excellent and useful contributions come from authors attempting to make sense of efforts to make peace with Kony or bring him to justice, as well as to implement reconciliation and transitional justice programs. Of particular value is the perspective of Ronald Iya, a traditional Madi leader who notes that most in his community believe Kony’s crimes are too extensive and serious to be handled through traditional justice mechanisms. Sandrine Perrot notes that efforts to address the crisis were undermined by its having been framed as a local, primarily humanitarian crisis rather than as part of a broad international and regional set of conflicts. As Branch notes, the only viable long-term solution to the crisis in Acholiland must integrate and institutionalize broad participation in Ugandan political life and discourses. [End Page 185] Many of the contributors’ findings challenge conventional wisdom on the experiences of child soldiers and transitional justice processes. Ben Mergelsberg demonstrates from his interviews with former abducted child soldiers that the LRA’s members are not simply passive victims. Indeed, he finds that former child soldiers are “active survivors with a good sense of who they were fighting, how they survived and what they needed most after their return from the LRA” (157). Likewise, Christopher Blattman and Jeannie Annan find that the LRA’s targeting of child soldiers is far from random, but is rather part of a...

Traditional Courts and the Struggle against State Impunity for Civil Wartime Offences in Mozambique

AbstractIn the Mozambican context of the state amnesty for civil war crimes, war survivors have used their local ethics of reciprocity to create justice. This article analyses how survivors have attempted to persuade judges in traditional courts to adjudicate in serious wartime disputes. These judges, who have no official mandate to redress wartime offences, tried to preserve the conflicting interests of the litigants and the state. This positioning, coupled with the fact that the local ethics of reciprocity are embedded in uneven power and gender relations, resulted in some cases being adjudicated and others not, and in some disputes receiving no gender justice. Nevertheless, some of the interventions indicate that national and international institutions of justice are not the only ones engaged in the struggle against impunity for wartime crimes. In Mozambique, specific attention must be paid to the study of traditional justice mechanisms as fonts of redress for wartime crimes and for the long-term contribution they can make.

Identity and Peace: Reconfiguring Conflict Resolution in Africa

The emergence of intra-state wars based on identity requires a reconfiguring of existing conflict resolution mechanisms. The article recognises the limitations of liberal peace models originally configured to deal with inter-state conflicts, but increasingly applied to inter-ethnic conflicts with limited success and often disastrous effects. The article argues for the reconceptualisation of identities as building blocks of sustainable peace, justice and reconciliation. The article also calls for the recognition of the role of regional peace and security mechanisms in conflict resolution, as far as possible the use of traditional justice mechanisms, especially in the context of increasing state failure on the continent. The article cautions against enthusiastic embrace of international justice mechanisms that may sometimes create stumbling blocks to peace and reconciliation. Rather the article suggests nuanced interventions in identity-based conflicts that reconcile democracy and justice, guaranteeing the rights of both majority and minority groups. African Journal on Conflict Resolution Vol. 7 (2) 2007: pp. 9-36