What can Western systems of justice and conflict resolution learn from the traditional African conflict resolution systems?
What can Western systems of justice and conflict resolution learn from the traditional African conflict resolution systems?
By Rumbidzai Mudzongo
There are a multitude of conflicts that people in society face that sometimes are not substantial enough to go to formal courts but still require some kind of resolution that they themselves cannot reach. Enter Alternative Dispute Resolution. Formal courts are often burdened with a multitude of cases and often experience backlogs that result in delayed justice for victims. Traditional African conflict resolution methods have been in existence for centuries before colonisation and dealt with all manner of issues in their communities. They are very often context-specific and not always universal, which, however, does not mean that they are not valuable in modern conflict resolution systems.
With the importation of Western governance systems during colonisation, many traditional practices and methods of governance were eradicated or changed to suit the new systems brought in that did not take into account the socio-political systems already in place, as well as their values and norms.[1] Although African cultures and traditions vary greatly from tribe to tribe, country to country, and region to region, there are some similarities. Councils of elders either within a family or a village who were chosen to resolve community disputes were common in many cultures, and although not used as often in modern times, there are still many communities in rural parts of Africa that resolve disputes in this manner. There are, of course, different names for these councils, the Shona call this‘Dare’, the Zulu ‘Ndaba’ and the Somali ‘Guurti’.[2] These councils consisted of men who were the patriarchs of families or those who were considered of high regard and influence in the community. They dealt with a range of issues from marital issues to land disputes, theft and crimes as grave as murder.[3]
In modern times, criminal cases are handled by formal courts and tribunals. Grave crimes such as murder, violence, genocide, war crimes, etc. cannot realistically be dealt with through negotiation or mediation between the victims and perpetrators because there would be no way to enforce punishments, nor to ensure that certain aspects of justice are upheld, such as the right to a fair trial and legal representation, the presumption of innocence, etc. That is why, for example, international criminal tribunals are established to deal specifically with the grave crimes of genocide, war crimes and crimes against humanity. However, since even specialised courts and tribunals cannot always handle the aftermath of wars and civil unrest, sometimes traditional methods of conflict resolution are needed to bring justice to the victims of these crimes.
After the Rwandan genocide in 1994, the International Criminal Tribunal for Rwanda was established by the United Nations Security Council.[4] This tribunal was set up to prosecute the most serious and significant perpetrators of the crime of genocide, such as army generals and politicians, but it left a gap as to what to do with the regular people who had committed acts of violence. Neighbours, families and friends had committed acts of violence against each other and the families of those who had fallen victim to this violence wanted justice that was not easily available both from the national system and the newly established tribunal. Due to the genocide, the Rwandan national justice system was decimated, with many judges, lawyers and other judicial workers having either fled or been killed.[5] The process of reconstruction of the formal justice system was going to be tenuous and take a long time. However, the victims needed justice and reparations promptly.
In response to this dilemma, the Rwandan government institutionalised the traditional Rwandan form of conflict resolution of the Gacaca. This crystallised/took shape in the form of a court consisting of the affected community sitting together and the accused having to confess their crimes and being given punishment by the community. This option of the Gacaca process was often offered as an alternative to those who had been arrested and were awaiting trial in the formal courts for years. The aim of the process was to reduce the burden on the courts and, in some regards, it accomplished that. The institutionalised version of the Gacaca process had elements of the formal justice system such as being adversarial and having people of all ages and genders able to participate. It still, however, took on the traditional form of the process and adopted some of the aims of the Gacaca, such as restoring harmony to the community and finding truth and reconciliation between Rwandans. The process was not without its flaws, as some perpetrators of violence, such as community elders, were still part of the community and avoiding justice, and most people were already assumed guilty and therefore not really given a fair trial. However, the lesson that can be taken from this is that when affected communities are given the opportunity and are included in the justice process it can mitigate further harm from being caused, provide alternative solutions that are more in line with their values and norms and foster renewed bonds amongst the community.
Therefore, modern justice and conflict resolution systems can learn from traditional African conflict systems how to reflect the social norms and values of the communities they operate within. They can incorporate the notion of involving the community in the process to get better outcomes such as easier social integration, reconciliation and social harmony. Whilst traditional conflict systems such as the Gacaca process may not be the perfect solution to the overburdened and sometimes under-resourced court systems, there are aspects to it that can be of benefit.
[1] Accord, 'Traditional methods of conflict resolution' (ACCORD, 11 February 2019) <https://www.accord.org.za/conflict-trends/traditional-methods-of-conflict-resolution/> accessed 27 March 2023.
[2] Ibid.
[3]Francis Kariuki,'Conflict Resolution by Elders in Africa: Successes, Challenges and Opportunities'(Kariuki Muigua & Company Advocates,15 July 2015 )<http://kmco.co.ke/wp-content/uploads/2018/08/Conflict-Resolution-by-Elders-successes-challenges-and-opportunities-1.pdf>accessed 25 March 2023.
[4] United Nations International Residual Mechanism for Criminal Tribunals, 'The ICTR in Brief' (United Nations International Residual Mechanism for Criminal Tribunals, July 2012) <https://unictr.irmct.org/en/tribunal> accessed 26 March 2023.
[5] Human Rights Watch, 'Rwanda: Justice After Genocide—20 Years On' (Human Rights Watch, 28 March 2014 ) <https://www.hrw.org/news/2014/03/28/rwanda-justice-after-genocide-20-years> accessed 26 March 2023.