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Advancing human rights in legally plural Africa: the role of development actors in the justice sector
Abstract
This dissertation examines the role of justice sector aid in sub-Saharan Africa regarding the relationship between human rights and local legal orders from a normative and empirical point of view. At the normative level, it explores how socio-legal theory on legal pluralism and human rights’ cross-contextual implementation may inform the practice of development actors in the justice sector. Based on case studies on Sierra Leone and Mozambique, the research applies this body of knowledge to the analysis of empirical data on development actors’ policies and interventions. The conclusion argues that the following issues deserve particular attention: the adoption of a users’ perspective regarding which local justice providers are targeted by policies and interventions, consideration of how different modes of dispute processing relate to the implementation of human rights, engagement with local knowledge and a critical approach to human right cross-contextual application.
The continued relevance of customary law for the regulation of the daily lives of Africa's citizens poses serious governance challenges to sovereign states, such as how best to regulate customary dispute settlement. While confronted with largely similar problems, the South African government proposed to enhance and regulate the position of its traditional courts, whereas Malawi has opted for the creation of hybrid local courts that combine characteristics of regular state courts and customary fora to be the main avenue of customary law cases. This paper analyzes the strengths and weaknesses of both approaches and displays how the two countries’ historical and political contexts enable and constrain their regulatory choices in the field of customary dispute settlement, as well as influence the risk and benefits of the various options. In this respect, the political power of the traditional leaders is a significant determinant.
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