This resource is paper no.7 in the International Development Law Organization (IDLO)’s Traditional Justice series.
Any discussion of the features of, and the opportunities and constraints inherent in, customary justice systems raises important questions about the role that they should play in the programming of national governments, international organizations and non-governmental organizations (NGOs) operating in development, post-conflict or post-natural disaster contexts. Principally, should aid agencies engage with customary justice systems when they operate outside the formal legal sector and may fail to uphold accepted international human rights and criminal justice standards, even though they may be the only functional or preferred mechanism for dispute resolution? If the answer is yes, what are the aims of and principles underpinning such engagement? Should attention focus on enhancing the protection of marginalized groups, either by eliminating the negative aspects of customary justice or strengthening the links between the formal and informal justice sectors?
Alternatively, should the aim be to modify our thinking with respect to the customary justice sector; to approach it less as a problem that needs to be resolved and instead as an integral part of the solution to providing access to fair and equitable justice for all — a system that needs to be supported and strengthened in all its aspects?
Although such questions were first posed only in recent years, a rich policy debate has evolved. The following article provides insight into this discourse, taking into account policy and donor imperatives, the extent to which engagement with customary justice aligns with dominant models of justice sector reform, and the role that customary justice systems might play in the achievement of other development objectives. A thorough understanding of these factors should guide how the rule of law community approaches programming in plural contexts, including by identifying some of the challenges that need to be overcome and by situating customary law within a framework that takes into account the socio-economic, cultural and security context in which community-level dispute resolution takes place.