NEW YORK (TrustLaw)- Proponents of the rule of law may focus on improving and reforming civil judicial systems but the reality is some 80 percent of disputes in developing countries are still resolved through local informal justice systems.
Traditional systems of justice must, therefore, be respected and engaged by formal systems, a panel of experts at the United Nations said.
"There is a big gap between the promise and the rhetoric on the one hand and the reality on the other," said Irene Khan, director-general of the International Development Law Organisation (IDLO).
The formal legal system is not always the best one for women, she said, particularly when it comes to family law, property rights, inheritance, divorce and child custody.
For example, she said: "On issues of women's access to land in Kenya, women who win in court are often ostracised by their own families." The result is that women do not trust justice institutions, she said.
But neither are informal justice systems (IJS) always the better choice. They can be biased against women, often tolerating or enforcing discriminatory practices such as female genital mutilation, bride price and denial of widow inheritance.
In other instances they have upheld forced marriage or the exchange of women and girls as part of the process of resolving a crime or in compensation for a transgression by a relative, according to "Accessing Justice: Models, Strategies and Best Practices on Women's Empowerment", a new report published by IDLO.
Due to expense, travel time, swiftness and ease of access, women in developing countries are more likely to use IJS, according to "Informal Justice Systems: Charting a Course for Human Rights-based Engagement," a new report issued by UN Women, UNICEF and the United Nations Development Programme (UNDP).
'DON'T DISMISS TRADITIONAL JUSTICE'
IJS form a key part of individuals' and communities' experience of justice and the rule of law, with over 80 percent of disputes resolved through informal justice mechanisms in some countries, the UN report said.
Henry Okello Oryem, Ugandan state minister for foreign affairs, said the question of how to deliver justice was "a topic close to my heart", especially during his involvement in peace talks between the Ugandan rebel Lord's Resistance Army (LRA) and the government between 2006 and 2009.
The LRA were notorious for attacking and mutilating civilians and kidnapping children to serve as sex slaves, porters and frontline soldiers.
"What do you actually do with a child who is 11, 12, 14 years-old, abducted from his village by a bunch of bandits, taught to kill, then actually kills?" Oryem said. "What do you do with such a child? That was the case with thousands of Ugandans."
"My professor said, 'The law is an ass'. And I never knew why he said that until I encountered these scenarios," Oryem said.
In Uganda, such cases were resolved through "mato oput", a reconciliation ritual, so named because both the accuser and the perpetrator drink the bitter juice of the oput tree to signal they have accepted the bitterness of the past and put it behind them.
"Through that system people have been able to return to their homes and restart their lives. This kind of jurisprudence can't be just dismissed as backward, primitive or mumbo-jumbo," said Oryem.
Nor should it be, said IDLO's Khan. "In countries where a formal legal system doesn't exist, the informal system gets stronger," she said. "So, if we in the international community ignore it, we do so at our own peril."
MAKING IT WORK FOR WOMEN
IJS, while more accessible, sometimes tend to favour men and present major difficulties for women - problems which sometimes can be solved through an appeal to the formal system, if there is one, said Catherine Wiesner, U.S. Deputy Assistant Secretary of State for Population, Refugees and Migration.
She gave the example of a case in South Sudan that illustrated the benefits of engaging both informal and formal justice systems.
The three daughters of a woman, who had been widowed but long since remarried, were preparing for their weddings. Suddenly, their mother's former brother-in-law showed up to claim the bride price for his nieces. His demand was upheld by the traditional justice system.
The woman appealed to a new civil court. That court also found the former brother-in-law's claim valid, but only if he would first reimburse his former sister-in-law for all of her expenses in raising the girls.
"The guy gave up," Wiesner said.