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ILGIs and justice dispensation

Non-state justice systems in southern Africa: how should governments respond

Making sense of non-state justice systems in Southern Africa

Authors: W. Schärf
Publisher: Institute of Criminology, University of Cape Town, South Africa, 2003

Full text of document

This report investigates non-state justice systems in six southern African countries: South Africa, Malawi, Botswana, Lesotho, Zambia and Mozambique. The report argues that contrary to the generally held view, much of the non-state justice in these countries is undertaken by the state functionaries themselves.

The report starts with an examination of the terminology used in the literature on non-state justice. It then explores the different forms that non-state justice has taken in the six countries.

Some of the highlights of the report are:

  • In Southern Africa the most common form of non-state justice are the traditional or customary courts presided over by chiefs, advised by their council of elders.
  • The weaker the state, the stronger and more varied the non-state justice system.
  • Mozambique, the poorest of the six countries under scrutiny, had an extensive system of socialist-style popular tribunals, the community courts prior to the 1993 Constitution.
  • There is a growing movement in some of the countries towards a written customary law.
  • The introduction of liberal constitutions in a few countries (SA, Malawi, Lesotho, Mozambique) adds a further impetus to explore the points of convergence and divergence between customary and state law.
Based on the examination of the non-state justice systems in the region, the author proposes the following four hypotheses:
  • The more legitimate (and sensitive to the needs of the poor) the regime, the more the 'non-state-type' structures will be integrated into the formal system, or at very least tolerated by it
  • Regimes that are fairly doctrinaire and do not tolerate high levels of diversity within the social fabric force the non-recognised religions and other non-acknowledged justice systems to operate outside of the realm of the state
  • Non-state mechanisms of social control and crime prevention are likely to be temporary and disappear when the state develops the capacity to cope with the problems
  • Urbanisation is likely to create mutations from, and additions to the rural indigenous justice systems to regulate the rigours of urban survival.