Promoting Access to Justice: a study on Strategies to Implement Collaborative Dispute Resolution Mechanisms and Procedures for Resolving Conflicts in Liberia Liberian Ministry of Justice By Christopher W
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Restorative JusticeCuneen, C. “What are the implications of restorative justice's use of indigenous traditions?” In H. Zehr & B. Toews (Eds.) Critical issues in restorative justice (pp. 345-354). Monsey, New York: Criminal Justice Press and Cullompton, Devon, UK: William Publishing, 2004 Daly, K. “Making variation a virtue: evaluating the potential and limits of restorative justice.” In E. G.M. Weitekamp & H. Kerner (Eds.) Restorative Justice in Context: International Practice and Directions (pp.23-50). Jlich, S. “Views of justice among survivors of historical child sexual abuse: Implications for restorative justice in New Zealand.” Theoretical Criminology, 10, 2006. pp. 125-138; Ministry of Justice. Restorative justice in New Zealand: Best practice. Welliington, NZ: Ministry of Justice 2004; http://www.justice.govt.nz/restorative-justice/rjprinciples.pdf, retrieved August 16, 2007 Johnstone, G., & Van Ness, D.W. Handbook of Restorative Justice. Cullompton Devon, UK: Willan Publishing, 2006. Nancarrow, H. “In search of justice for domestic violence and family violence: Indigenous and non-indigenous women's perspectives in Australia.” Theoretical Criminology, 10, 87 20060 p. 106 Skelton, A., & Batley, M. Charting progress, mapping the future: restorative justice in South Africa. Pretoria, South Africa: Restorative Justice Centre, 2006 http://www.iss.co.za/index.php?link_id=3&slink_id=2920&link_type=12&slink_type=12&tmpl_id=3, retrieved August 16, 2007. UN Habitat. Paper on Restorative Justice Examples from South Africa, See: http://www.unhabitat.org/list.asp?typeid=3&catid=575&start=61&page=7. Wesley, J., and Tall, A. “Children Involved with the System of Juvenile Justice”. http://www.unicefirc.org/portfolios/documents/484_liberia.htm Yazzie, R., Life Comes from It: Navajo Justice Concepts, New Mexico Law Review, 24, 175-90 (1994). “Restorative Justice Responses to Violence Against Women,” a publication of VAWnet (National Online Resource Center for Violence Against Women).
Chapman, C. & Kagaha, A. “Resolving Conflicts Using Traditional Mechanisms in the Karamoja and Teso Regions of Uganda.” Northern Uganda Rehabilitation Programme. Minority Rights Group International. August 2009. Chirayath, L. et. al. “Customary Law and Policy Reform: Engaging with the Plurality of Justice Systems.” World Development Report 2006: Equity and Development Background paper. July, 2005. Christofides, N.J., Jewkes, R.K., Webster, N., Penn-Kekana, L., Abrahams, N., & Martin, L.J. ""Other patients are really in need of medical attention: The quality of health services for rape survivors in South Africa. Bulletin of the World Health Organization.,” 83(7), 2005. Cohen, M.H., d'Adesky, A-C., & Anastos, K. “Women in Rwanda: Another world is possible.” JAMA, 294(5), 2005. Ghana Alternative Dispute Resolution Act, 2010. Gunawardena, M. A Just Alternative: Providing access to justice through two decades of Community Mediation Boards in Sri Lanka.asiafoundation.org/publications/pdf/948. Haki Network. “Engaging Customary Justice Systems.” White Paper, October 2011. Harper, E. “Customary Justice: From Program Design to Impact Evaluation.” International Development Law Organization. Rome, Italy. 2011. Kuhner, T. Court Connected Mediation Compared: The cases of Argentina and the United States. Legal Studies Research Paper Series. Roger Williams University school of Law. 11 ILSA J. Int’l & Comp. L. 520 (2005) (Bilingual Edition). Liu Institute for Global Issues. “Roco Wat I Acoli: Restoring Relationships in Acholi-land: Traditional Approaches to Justice and reintegration.” Gulu District NGO Forum. September, 2005. National Open University of Nigeria. Course: “African Traditional Methods of Conflict Resolution.” Course Code: PCR731, 2010. Nyamu-Musembi, C. “Review of Experience in Engaging with ‘Non-State’ Justice Systems in east Africa.” Institute of Development Studies, Sussex University. February, 2003. Peacebuilding Initiative. “Traditional and Informal Justice Systems: Case Studies.” Accessed May 28, 2013. www.peacebuildinginitiative.org/index.cfm?pageId=1879 Robiso, R. R. “Barangay Justice System.” http://philjustfoundation.blogspot.com/p/plgr.html. Scharf, W. “Non-State Justice Systems in Southern Africa: How Should Government Respond?” Institute of Criminology, University of Cape Town, South Africa. March, 2003. “The Land Disputes Tribunals Act, Chapter 303A).” Nairobi, Kenya: National Council for Law Reporting, 2009. Ubink, J. and McInerney, T. (eds.) Customary Justice: Perspectives on Legal Empowerment. Rome: International Development Law Association, No. 3. Rome, Italy. 2011. Ubink, J. and Rooij, B. “Traditional Justice: Towards customary Legal Empowerment, An Introduction.” Working Papers. International Development Law Organization. Leiden University, Rome 2011. Uganda Arbitration and Conciliation Act. UNDP; UNICEF; & UN Women. “Informal Justice Systems: Charting a Course for Human Rights-Based Engagement.” New York. United Nations. “ Guiding Principles on Business and Human Rights: Implementing the United nations ‘Protect, Respect, and Remedy’ Framework.” UN Human Rights Office of the High Commissioner. Geneva, 2011. Uwazie, E. “Alternative Dispute Resolution in Africa: Preventing Conflict and Enhancing Stability.” Africa Security Brief. No. 16, November, 2011. Werner, K. “Rediscovering Indigenous Peacebuilding Techniques: The Way to Lasting Peace?” University for Peace Africa Programme. Africa Peace and Conflict Journal, 3:2 (2010), 60-73. Wojkowska, E. “Doing Justice: How Informal Justice Systems Can Contribute.” UNDP. Oslo Governance Center. The Democratic Governance Fellowship Programme. December, 2006. Other Moore, C. “The Practice of Cooperative Environmental Conflict Resolution in Developing Countries.” In Environmental Conflict Resolution. Napier, C. (ed.), London: Cameron May, 1998. Rights and Resources (RRI) Concept Note Guide, 2013. Roundtable on Sustainable Palm Oil. http://www.rspo.org/ “Standby Team of Mediation Experts.”http://www.un.org/wcm/content/site/undpa/standby_team
Wildau, S., Moore C., Atkins, D., and O’Neill, E. A Guide to Designing and Implementing Grievance Mechanisms for Development Projects. Washington, D.C.: Compliance Advisor/Ombudsman, International Finance Corporation, 2008. Yarn, D. Dictionary of Dispute Resolution. San Francisco: Jossey-Bass, 1999. Zandvliet, L. and Anderson, M. Getting it Right: Making Corporate-Community Relations Work. Sheffield, UK: Greenleaf Publishing, 2010. 1 Topics for the Desk Review are detailed in the Terms of Reference for the International and National ADR Consultants and the document “Activities of ADR Program” provided by the Ministry of Justice. Others relevant ones have been added as a result of research for the study. 2 Portions of this section of the Desk Review are drawn from a previous work conducted by the author: Moore, C. “A Study on Alternative Land Dispute Resolution Systems in the Republic of Liberia: Strategies for Coordination and Operationalization of Systems to Enhance Their Effectiveness.” Report to the Liberia Land Commission and the Land Dispute Resolution Task Force, May, 2011. 3 “Agenda for Transformation: Steps Toward Liberia Rising 2030”; “The Liberia National Vision 2030”; “The Poverty Reduction Strategy, Republic of Liberia”, 2008; “Towards a Reconciled, Peaceful and Prosperous Liberia: A Strategic Roadmap for National Healing, Peacebuilding and Reconciliation”, Ministry of Internal Affairs, Ministry of Planning and Economic Affairs, Governance Commission, Independent National Commission on Human Rights, Liberia Reconciliation Initiative, and Representatives of Civil Society Organizations, June 2012 – July 2030. 4 Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect. Respect and Remedy’ Framework. New York and Geneva: United Nations, 2011, pp. 33-34. 5 However, many citizens believe that the formal justice system in practice does not always protect equal rights. This is one of the reasons for their frequent preference to seek redress of grievances and the resolution of disputes through customary procedures. 6 Examples of studies and input from conferences include: Isser, D., Lubkemann, S. and N’Tow, S. Looking for Justice: Liberian Experiences with and Perceptions of Local Justice Options. Washington, D.C.: U.S. Institute of Peace, 2009; and the National Conference on Enhancing Access to Justice: ‘A Review of the Traditional and Formal Justice System in Liberia. Gbarnga, Bong County: Ministry of Justice, Ministry of Internal Affairs and the Supreme Court of Liberia, April 15-17, 2010. 7 “…incompatible claims is (in Liberian English) commonly referred [are commonly referred to as a ‘confusion’. This is a form of dispute that has not yet escalated into verbal or physical violence, but will put two parties at odds with one another and cause tension. It is typically characterised by the expression of a grievance in private to some form of authority, with the aim to investigate and find a mediated outcome. However, palava occurs when the dispute has been brought into the public realm and is characterised by either verbal ‘abuse’ or physical violence.” CorriveauBourque, A. “Confusions and Palava: The Logic of Land Encroachment in Lofa County, Liberia.” Oslo, Norway: Norwegian Refugee Council, 2010, p. 7. 8 “Public Perception Survey on Justice and Security in South-East Liberia.” Monrovia, Liberia: UNMIL Peacebuilding Office, August, 2013, p. 21. 9 “Public Perception Survey on Justice and Security in South-East Liberia.” Monrovia, Liberia: UNMIL Peacebuilding Office, August, 2013, p. 21. 10 While alcohol may be a contributing factor family disputes in Liberia, there are also a number of larger likely causal factors. Some of these, among others, include dysfunctionality in social structures of the society, social disorganization caused by the war and poverty. 11 Corriveau-Bourque, A. “Confusions and Palava: The Logic of Land Encroachment in Lofa County, Liberia.” Norwegian Refugee Council, 2010: and Hartman, A. “Comparative Analysis of Land Conflicts in Liberia: Grand Gedeh, Lofa and Nimba Counties.” Oslo, Norway: Norwegian Refugee Council, n.d.; Syn, J. “Mediating land Disputes in Liberia.” Accord, Issue 23, April 2012; Norton, G. “Searching for Soap Trees” Norwegian Refugee Council’s Land Dispute Resolution Process in Liberia.” Oslo, Norway: Norwegian Refugee Council, January 2011; and “Carter Center Helping Traditional Leaders in Liberia Resolve Land Disputes”. Voice of America. http://www.voanews.com/content/carter-center-helping-traditional-leaders-in-liberia-resolve-land-disputes 12 /154701.html 13 “Land Inventory Project: Analysis of Land Disputes in Circuit and Magisterial Courts in Bong and Nimba Counties, January 2008 – July 2009.” Monrovia: Barbu Group Incorporated, November, 2010. 14 Rose, L. “Customary Land Law in Liberia: An Overview of the Literature.” Liberia Land Commission and the World Bank, January 2011. 15 Case Progression: Paramount Chiefs and the Tribal Governor’s Courts Structure. Monrovia, Liberia: UNMIL – Legal and Judicial Support Division, 2013. 16 Correspondence with Alexandra Hartman, researcher for the Norwegian Refugee Council’s Information, Counselling and Legal Assistance Project in Liberia, July 30, 2013. 17 Personal conversation of the author with Greg Kitt, Norwegian Refugee Council’s Program Manager for its Information, Counselling and Legal Assistance Project, Fall, 2012. 18 “Act to Create the National Council of Chiefs and Elders of the Republic of Liberia.” Passed by the legislature on May 31st, 2012; http://www.informerliberia.net/index.php?option=com_k2&view=item&id=442:traditional-councilgets-national-status-becomes-chief-and-elders-council-of-liberia&Itemid=61&tmpl=component&print=1; and http://legislature.gov.lr/content/nat%E2%80%99l-traditional-council-gets-autonomous-status 18www.cartercenter.org/resources/pdfs/peace/conflict_resolution/ Liberia/LormaMandingoElders-agreements.pdf. 19 “Liberia: Resurrecting the Justice System”. Africa Report No 107, April 6, 2006. 20 http://www.irinnews.org/report/74205/liberia-juvenile-justice-system-in-tatters 21 Juanita K. Wesley and Abou Tall “Children Involved with the System of Juvenile Justice”. http://www.unicefirc.org/portfolios/documents/484_liberia.htm 22 “Public Perception Survey on Justice and Security in South-East Liberia.” Monrovia, Liberia: UNMIL Peacebuilding Office, August, 2013, p. 21. 23 UNHCR, 2003. 24 In-depth Study of Reasons for High Incidence of Sexual and Gender Based Violence in Liberia – Recommendations on Prevention and Response.” Monrovia: Government of Liberia/UN Joint Programme on Sexual and Gender Based Violence, Supported by the Swedish International Development Cooperation (SIDA), October 2011. 25 Demographic Health Survey in Liberia as cited in Abdulai, E. D. “Strengthening of Prosecution of SGBV Offences through support to the Sexual and Gender Based Violence Crimes Unit (SGBV CU).” Monrovia, 2010, p. 5; “An Assessment and Review of the Capacity of the Court System: Factors affecting the Prosecution of SGBV Offenses in Liberia”. Monrovia, AFELL, 2007. 26 Cited in Abdulai, E. D. “Strengthening of Prosecution of SGBV Offences through support to the Sexual and Gender Based Violence Crimes Unit (SGBV CU).” Monrovia, 2010, p. 5. 27 Report on Circuit Courts and Sexual and Gender Based Violence Consolidated Report 2010/1011, Monrovia, Liberia, UNMIL, 2011, p. 47 28 An Assessment and Review of the Capacity of the Court System: Factors affecting the Prosecution of SGBV Offenses in Liberia.” Monrovia, AFELL, 2007. 29 Rape Law, Section 14.70.1(b), 2006. 29 Consolidated Analysis of Circuit Court Terms, UNMIL, 2011. 30 U.S. Department of State, Human Rights Report, Liberia, 2012. 31 Rights and Resources (RRI) Concept Note Guide, 2013, p1. 32 Moore, C. “The Practice of Cooperative Environmental Conflict Resolution in Developing Countries.” In Environmental Conflict Resolution. Napier, C. (ed.), London: Cameron May, 1998. 33 Yarn, D. Dictionary of Dispute Resolution. San Francisco: Jossey-Bass, 1999, p. 17 – 20. 34 Flomoku, P. and Reeves, L. “Formal and informal justice in Liberia.” In Accord, Consolidating: Peace in Liberia and Sierra Leone, Issue 33, March, 2012. 35 Moore, C. Housing, Land and Property Handbook on the Design and Implementation of Collaborative Dispute Resolution. Oslo, Norway: Norwegian Refugee Council, 2012; and Moore, C. and Cooper, L. Land Coordination Center Collaborative Dispute Resolution Manual. Monrovia, Liberia: Liberia Land Commission/USAID/Tetra Tech, 2012. 36 ILAC Report: Liberia, 2003, p. 22. 37 The accuracy of ratings for alignment will need to be confirmed by interviews with individuals and focus groups that will be consulted on future MOJ dispute resolution priorities and what initiatives the Ministry should undertake in non-adjudicative dispute resolution. 43 An example of informal procedures at the local level is described in: Gibbs, J. L. “The Kpelle Moot,” Africa, vol. 33, No.1, 1963. 38 Strangers are residents of villages and land who do not trace their ancestry to the local community. They are often seen by host communities as temporary residents, even though they may have been residents of the village for generations, who have sworn allegiance to the local landowner or chief. “Liberian ‘native’ land tenure being a concession of the state to ‘customary’ users barely recognizes the rights of strangers. There is nothing resembling a legally-enforceable, guaranteed short-hold tenancy agreement”. If they are internally displaced persons (IDPs) they 39 Interviews conducted by Atty. Arthur T. Johnson and Fatu Daramy-Mensah with the members of the National Council of Chiefs and Elders of the Republic of Liberia, August 13, 2012. 40 Ibid, p. 3. 41 Revised Rules and Regulations Governing the Hinterland of Liberia, Ministry of Internal Affairs, 7 January 2007; Rules and Regulations Governing Local Government Officials of the Political Subdivisions of Liberia (Revised Edition), Ministry of Internal Affairs, 24 February 2005. 42 New Penal Law of Liberia, Chapter 16, Section 16.1 .1. 43 Case Progression: Paramount Chiefs and the Tribal Governor’s Courts Structure. Monrovia, Liberia: UNMIL – Legal and Judicial Support Division, 2013. 45 Case Progression: Paramount Chiefs and the Tribal Governor’s Courts Structure. p. 14. 46 Isser, D., Lubkemann, S. and N’Tow, S., p. 5. 47 Isser, D., Lubkemann, S. and N’Tow, S., p.76. 48 Constitution of Liberia, Chapter VII, Article 66). 49 Case Progression: Paramount Chiefs and the Tribal Governor’s Courts Structure. p. 15. 60 Isser, D., Lubkemann, S. and N’Tow, S., p. 5. 50 IBID, p. 57. 51 National Conference on Enhancing Access to Justice: “A Review of the Traditional and Formal Justice System in Liberia”. Gbarnga, Bong County: Ministry of Justice, Ministry of Internal Affairs and the Supreme Court of Liberia, April 15-17, 2010, p. 57. 52 “Liberia: Poverty Reduction Strategy Paper—Annual Progress Report.” IMF Country Report No. 12/45, 2012 International Monetary Fund, February 2012, p. 32. 53 “Public Perception Survey on Justice and Security in South-East Liberia.” Monrovia, Liberia: UNMIL Peacebuilding Office, August, 2013, p. 23. 65 IBID, p. 23. 54 “Liberia: Resurrecting the Justice System, Executive Summary and Recommendations”. International Crisis Group, 2006, p 8. 55 “Carter Center Helping Traditional Leaders in Liberia Resolve Conflicts.” Voice of America. http://www.voanews.com/content/carter-center-helping-traditional-leaders-in-liberia-resolve-land-disputes 56 /154701.html 57 Liberian Experiences with and Perceptions of Local Justice Options, p 26. 69 Ibid, p. 26. 58 Ibid, p. 26. 59 Judicial review of cases is a function of the Courts. If it is decided that there is a need for review of cases adjudicated by customary Courts, the function of review should be a court function. If a non-judicial adjudicative method is used, the authorities must be careful to avoid any conflict with constitutionally delegated functions of the court system and other previous legislation. Also see: “Chapter 5 – Policy Proposals for Justice Reform in Liberia: Opportunities Under the Current Legal Framework to Expand Access to Justice”. In Customary Justice: Perspectives on Legal Empowerment. Ubink, J. and McInerney, T. (Eds). Rome: International Development Law Association, 2011, p. 106 – 107. 60 Rawls, A., Chapter 5 – Policy Proposals for Justice Reform in Liberia: Opportunities Under the Current Legal Framework to Expand Access to Justice”. In Customary Justice: Perspectives on Legal Empowerment. p. 108. 73 Lavenda, R. and Schlutz, E. “Secret Societies in Western Africa”, In Anthropology: What Does It Mean to Be Human? Oxford: Oxford University Press, 1997. 61 Gibbs, H. ”Poro Values and Courtroom Procedures in a Kpelle chiefdom,” Southwest Journal of Anthropology Number 18, Vol. 3, pp. 349 – 50. 62 Fulton, R. “The Political Structures and Functions of Poro in Kpelle Society”. American Anthropologist, Vol. 74, No. 63 ., October 1972. 64 National Conference on Enhancing Access to Justice: A Review of the Traditional & and Formal Justice Systems in Liberia, Gbarnga, Bong County, April 15-17th, 2010. 65 “Liberia: Resurrecting the Justice System, Executive Summary and Recommendations”. International Crisis Group, 2006, p 8. 66 Fuller, IBID. 67 It is hard to apply this framework to the dispute resolution activities of secret societies as little is published about them. 68 Moore, C. 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