Quest for Child Justice in Africa, Could Informal Justice System Be The Answer?
By. Jennifer Kaberi
Children access justice through a variety of mechanisms, both formal and informal. While a lot of investment has gone into ensuring that the formal justice mechanisms adhere to child-rights protection standards, there are immense gaps in knowledge of the existence and use of the informal justice systems in African countries. This is according to a report released by the Africa Child Policy Forum in Addis Ababa.
The report highlights some of the good practices in the informal justice system such as village courts and chief baraza’s in Malawi. A good example is Botswana where the justice system starts from the family level going up
Amongst the Tswana of Botswana, dispute resolution starts at the household (lolwapa) level. 228 If a dispute cannot be resolved at this level, it is taken to the kgotlana (extended-family level), where elders from the extended family sit and listen to the matter. The elders emphasise mediation of disputes. If the kgotlana does not resolve the dispute, the disputants take the matter to kgotla, which is a customary court with formal court-like procedures. It consists of the chief at the village level and the paramount chief at the regional levels
The reports highlights the following as the reasons why many people in Africa prefer the non formal justice system
- Resolve disputes without damaging relationships on which social harmony and economic interdependency relies;
- Are based on cooperation, communitarianism, strong group cohesion, social obligations, consensus-based decision-making, social conformity, and strong social sanctions;
- Are accessible, especially to the rural poor and the illiterate;
- Are flexible and rely on voluntary participation;
- Foster relationships and provide restorative justice outcomes; • give parties some level of autonomy in their participation;
- Regard justice processes as an integral part of social life; and
- Are located in the specificities of the circumstances of those seeking a resolution
- The informal system can be used as way that can be used to accelerate child justice. The report aims at challenging policy and decision makers to explore how both informal and non formal justice systems can be integrated to improve the lives of children. The report gives the following recommendations among others.
- Investment in the positives
- Stakeholders in informal justice systems need to be sensitised to child-friendly justice, the basic elements of human rights, and the rule of law.
- Involvement of informal justice systems in rule of law programmes.
- Articulation and coordination with formal justice systems
However, the authors of the report are quick to caution on the excessive dependency on the informal mechanisms because they lack some fundamental protection of human rights and in extension child rights that may result to injustice such as the following
- The absence of the right to an appeal;
- The possibility of gender discrimination, given the power imbalances and inequalities in traditional societies generally;
- The possibility of conflict between, on the one hand, the need within traditional justice processes for the acceptance of responsibility, and, on the other, the universal principle of the presumption of innocence – a conflict especially relevant if there is a likelihood for the matter to end up in the formal justice system;
- The absence of a right to, and requirement of, legal representation;
- punishments that violate human rights, for example corporal punishment;
- Trial procedures, such as trial by ordeal, that contravene universal human rights principles;
- The failure to observe the concept of a minimum age of criminal responsibility, given that there is no minimum age for participation in the proceedings;
- The denial of children’s agency, given that customary justice operates according to the notion of collective rather than individual responsibility; and
- The absence of specialised child justice systems within the mechanisms, given that the same arbitrators deal with children and adults alike and that hearings for adjudication are commonly held in or open to the public
The report concludes that as much as the informal justice system is accessible and trusted by a majority of people, there is need for regulation of the practice while taking into cognisant the important role it plays in access to justice.
Jennifer Kaberi, is founder and CEO of Mtoto News, an online platform for news, information and resources on children