AEGIS ECAS 2007 - View abstract

Panel	36. Between customs and state law: The dynamics of local law in sub-Saharan Africa
Paper ID	201
Author(s)	Haber, Andrew S.
Paper	No paper submitted
Abstract	A crisis in the criminal justice systems of many African nations stands as one explanation for a loss of security and a lack of justice. Furthermore, individuals seeking justice in many developing (and developed) countries face a myriad of obstacles. Often, bringing a dispute to court carries high costs in regards to time, money, and effort. Simultaneously, the outcomes are often too unpredictable, biased, or take too long to reach to be worth the effort. The situation is even worse for those accused of a crime, whom may not be guaranteed a fair trial and all too often serve more prison time in remand than they do fulfilling their sentences. In order to provide a framework within which the numerous individual causes of this phenomenon may be analyzed, this paper creates three categories of barriers to justice: infrastructural obstacles, social-structural obstacles, and social-psychological obstacles. Additionally, a lack of African input into global criminological thought, the forcing of institutions upon colonial Africa, and their propagation in post-independence Africa has created a system in which legal and justice systems are out of touch with the culture they regulate. Some of the changes associative with the replacement of indigenous justice system with their foreign counterparts include a shift from focusing on the victim to focusing on the villain, a shift from compensatory to retributive punishment, and shift from consensus to individualistic orientations. In an analysis of the South African Truth and Reconciliation Committee hearings in the 1990s, James L. Gibson creates a typology of justice to examine the effects of granting amnesty to those who admitted to crimes against humanity during the apartheid era. The categorization consisted of restorative justice, distributive justice, and procedural justice. This paper provides two additional dimensions of the African paradigm, transformative justice and collective justice, to study themes among indigenous African justice systems and how they compare to the characteristics of western structures. While state institutions may ignore the possible contributions of indigenous forms of justice, African cultural practice does not. In reality, the two conceptual frameworks operate simultaneously and interact in very interesting ways. Distinguished legal anthropologists such as Sally Falk Moore rather argue that norms are still inherited and enforced through varying forms of discourse and decision making processes - they have as much of an effect on daily life as state produced codes. The remainder of this paper provides two uses of indigenous justice paradigms practiced by post-apartheid South Africa. While the models used in these cases are by no means the only ways to incorporate such values into the state justice systems, they do exemplify some of the possible ways of doing so. The use of the Truth and Reconciliation Commission to explore crimes committed under Apartheid is termed the "macro-model" because it was used to explore numerous large national cases. The Community Peace Program is categorized as a "micro-model" because it is used to handle individual conflicts in various small communities, thus becoming a strategy to increase access to justice.

Criminology and Justice in Today’s Africa: Institutional Disconnect & the Opportunities of Indigenous Innovation