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African Perspectives on Tradition and Justice

Overview

This volume aims to produce a better understanding of the relationship between tradition and justice in Africa. It presents six contributions of African scholars related to current international discourses on access to justice and human rights and on the localisation of transitional justice. The contributions suggest that access to justice and appropriate, context-specific transitional justice strategies need to consider diversity and legal pluralism. In this sense, they all stress that dialogical approaches are ...

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Overview

This volume aims to produce a better understanding of the relationship between tradition and justice in Africa. It presents six contributions of African scholars related to current international discourses on access to justice and human rights and on the localisation of transitional justice. The contributions suggest that access to justice and appropriate, context-specific transitional justice strategies need to consider diversity and legal pluralism. In this sense, they all stress that dialogical approaches are the way forward. Whether it is in the context of legal reforms, transitional processes in post-war societies or the promotion of human rights in general, all contributors accentuate that it is by means of cooperation, conversation and cross-fertilization between different legal realities that positive achievements can be realized. The contributions in this book illustrate the perspectives on this dialectical process from those operating on the ground, and more specifically from Sierra Leone, Mozambique, Malawi, South Africa, Uganda and Rwanda. Obviously, the contributions in this volume do not provide the final outcome of the debate. Rather, they are a part of it.

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Product Details

  • ISBN-13: 9781780680590
  • Publisher: Intersentia
  • Publication date: 5/13/2012
  • Pages: 188
  • Product dimensions: 6.20 (w) x 9.30 (h) x 0.50 (d)

Table of Contents

Acknowledgements v

About the authors and editors xi

Chapter 1 Introduction Giselle Corradi Martien Schotsmans 1

1 Background to the Volume 1

2 Historical context and current approaches 2

2.1 Traditional justice and development in Africa 2

2.2 The localisation of transitional justice 5

3 The contributions 9

4 Common themes 11

Bibliography 14

Chapter II Access to justice and human rights in the traditional courts of sub-Saharan Africa Tom Bennett 19

1 Introduction 19

2 The traditional African style of justice 22

3 Due process of law 24

4 Equal treatment 26

5 Rights in criminal proceedings 28

5.1 The civil/criminal distinction 28

5.2 Due process in criminal proceedings 31

5.3 The presumption of innocence 32

5.4 Legal representation 33

6 Access to justice 34

7 Conclusion - And the right to culture 38

Bibliography 40

Chapter III Courts and the application of customary law in Malawi: Towards the reintroduction of local courts Kenan Tilombe Manda 47

1 Introduction 47

2 Historical background 47

3 The structure of the Malawi court system since 1994 50

4 The application of customary law 51

4.1 Problems in the magistrate courts 51

4.2 Developing customary law jurisprudence 54

5 The recommendations of the Malawi Law Commission 59

5.1 The structure and positioning of the new local courts 60

5.2 Presiding officers and assessors 61

5.3 Jurisdiction 62

6 Conclusion 64

Bibliography 65

Chapter IV Powers, rights and citizenship: The 'return' of the traditional authorities in Mozambique Maria Paula G. Meneses 67

1 Introduction 67

2 Tradition, between the past and the future 68

3 Civilization, culture and citizenship in the colonial context 72

3.1 Nationality and citizenship: toughening the abyssal line 72

3.2 Highlights of colonial administrative reforms 75

4 Old and new actors in the political fabric of independent Mozambique 78

4.1 Amplifying the plural network of justices 79

4.2 The return of 'old' actors 83

5 Contemporary political implications of legal pluralism 87

Bibliography 90

Chapter V Traditional justice and human rights in post-war African countries: Prospects and challenges Joe A.D. Alie 95

1 Introduction 95

2 Confronting the justice challenge 96

3 Is traditional justice the answer? 98

4 Characteristics 101

5 The human rights question 106

6 The Sierra Leone conflict 109

7 Justice and reconciliation from below 111

7.1 Reintegration and reconciliation of ex-combatants 112

7.2 Community reconciliation 113

7.3 Philosophical expressions that are germane to the reconciliation process 115

8 Conclusion: The future of traditional justice 116

Bibliography 117

Chapter VI Reinventing and validating the cosmology and ontology of restorative justice: Hermeneutics of the traditional Acholi justices system in Northern Uganda Daniel Komakech 121

1 Rationale of the study: Contextualizing the assumptions and traits of justice in transitional justice 121

1.1 Introduction 121

1.2 The thesis and outline of the chapter 122

1.3 Central argument 122

1.4 Methodology 123

2 Live and let live: A critique of dominant modernist justice in transitional justice discourse 124

2.1 Introduction 124

2.2 The modernist critique of tradition 124

2.3 The modernist epistemology and retributive justice 126

2.4 The ICC and retributive justice in the Northern Uganda armed conflict 128

3 The resurgence of the traditional justice system in Northern Uganda 130

3.1 The notion of tradition in the Acholi community 130

3.2 Reconstructing and validating tradition: A hermeneutics 131

3.3 Acholi cosmology and ontology: Tempels' framework 132

3.4 Cosmology and ontology among the Acholi of Uganda 133

3.5 The ontological hierarchy - Reconciliation and restoration in Acholi 135

4 Acholi traditional justice and human rights 137

4.1 Acholi understanding of human rights 137

4.1.1 The Acholi concept of rights being natural and communal 138

4.1.2 Duty and responsibility in human rights 139

5 Reliving Acholi traditional justice mechanisms: Plant Acholi in an Acholi garden 140

5.1 The Acholi concept of dano as a framework for reconciliation 140

5.2 Justice and systematic thinking: Returning the ICC to the classroom 142

6 Conclusion 144

Bibliography 145

Chapter VII Revisiting the legal and socio-political foundations and (Western) criticisms of gacaca courts Felix Mukwiza Ndahinda Alphonse Muleefu 149

1 Introduction 149

2 Legal and socio-political underpinnings of gacaca courts

2.1 Prosecuting genocide cases in post-genocide Rwanda 152

2.2 Motivations for the establishment of the gacaca courts 154

2.2.1 Socio-legal dimensions 155

2.2.2 Socio-political considerations 156

2.2.3 Socio-cultural motivations 159

3 (Western) criticisms of gacaca courts 160

3.1 Non-inclusion of RPF/A crimes in the gacaca process 161

3.2 Non-compliance with due process guarantees 165

3.3 Lack of judicial independence 166

4 Conclusion 168

Bibliography 168

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