• ILGIs and local democracy

ILGIs and local democracy

This paper attempts to bring customary systems into central focus in the ongoing debate about legal and regulatory reform. It first analyses the ongoing challenges and critiques of customary legal systems and examines why, despite these challenges, engaging with such systems is crucial to successful reform processes. It then turns to an examination of the ways in which customary systems have developed in three African Countries—Tanzania, Rwanda and South Africa—and how governments in each of these countries have tried to deal with different systems.

The analysis shows how deeply entwined customary legal systems are in local cultures and history. The uniqueness and idiosyncrasy of each context means that attempts by external agents to introduce new, uniform procedures are inherently destined to struggle.

The authors conclude that exhaustive efforts to “understand” local legal systems so that they can be made more “compatible” with formal/state systems would be hugely time consuming. They are unlikely to fundamentally alter the balance of power or overcome the pervasive information asymmetries that exists between local communities and external legal professionals.

The authors, therefore, suggest that:

• ‘pro-poor’ judicial reform initiatives should focus on creating new mediating institutions wherein actors from both realms can meet—following simple, transparent, mutually agreed-upon, and accountable rules—to craft new arrangements that both sides can own and enforce
• rather than being stand-alone “judicial reform” projects, these initiatives should be appended on to more mainstream development projects, seeking to use the powerful incentives associated with accessing material resources for roads, schools, etc. as a basis for establishing new precedents and procedures for decision-making and priority-setting

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