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

Chapter 4 Liberian Values Concerning Dispute Resolution and their Relationship to Restorative Justice

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Chapter 4 Liberian Values Concerning Dispute Resolution and their Relationship to Restorative Justice

The formal justice system in Liberia is provided by the judiciary and formal state courts – Supreme, Circuit and Magistrates’ courts; and specialized courts to handle commercial, debt, juvenile and traffic issues. Judicial procedures are grounded in and oriented toward upholding national law and protecting equal rights. Courts utilize adversarial procedures to uncover the facts of cases brought before them, arrive at verdicts regarding the guilt or innocence of accused and determine punishments for those found guilty of illegal behavior or activities.5 The foundations of this system are, on occasion, at odds with values that are important to many Liberians regarding preferred dispute resolution mechanisms, procedures and outcomes. This is often the case for citizens living in rural areas, where their preferences are to use chiefs and customary procedures.

Numerous interviews, studies, meetings and conferences have occurred in which Liberians have been asked about their values as they relate to conflict resolution mechanisms, procedures and their outcomes.6 The following have been identified:

  • Disputants are open to, and generally prefer, going to trusted and respected third parties for assistance in dispute resolution when they cannot resolve them themselves;

  • Disputants want the resolution process to discover “the truth” about not only narrow issues in dispute, but also the deeper root causes of the conflict;

  • Disputants (and customary third parties) want the outcome of the dispute resolution process to be based on input and deliberations of wider community members who may have relevant information or insights about both the causes of the dispute and how it could or should be amicably settled;

  • If an injustice or harm has been done, the guilty party should acknowledge it as a means of ending the conflict;

  • If disputants cannot agree on the merits of a claim or a respondent’s guilt or innocence, they expect to get a non-binding decision from a third party on the merits of the parties’ claims and a recommendation for a proposed outcome;

  • Methods for righting a wrong may be the subject for further discussion by the disputants. However, if they cannot agree, methods to redress harm done or punishments meted out by third parties should have an overriding goal of promoting reconciliation between disputing parties as members of a common community and prevention of the dispute from arising at some time in the future;

  • Compensation may be used as a component of the resolution process as a means to repair harm, however, it may be of less importance than reconciliation;

  • Disputing parties should have the right to appeal an unacceptable non-binding decision by a third party (either a customary leader or a government official/judge) which they find to be unacceptable;

  • If an offense has been committed against a community (such as disorderly conduct, telling lies or spreading rumors, avoiding performing expected community work), the offender may have to make atonement to the larger group (such as by cooking a meal for everyone or paying a fine).

Liberian Values, Restorative Justice and Victim-Offender Mediation

Because of Liberian values about and expectations for justice, and acceptable dispute resolution procedures to attain it, the Ministry of Justice (MOJ) is considering incorporating “restorative justice” (hereinafter ‘RJ’) principles and procedures into a pilot project or other access to justice initiatives it decides to pursue. RJ is a set of principles and dispute resolution procedures that have been found to be effective means to resolve disputes and restore relationships between victims, offenders and their communities in a variety of societies around the world. The process has been tested and found to be a productive dispute resolution process in different cultures, with diverse socio-economic groups, across genders and as a means to address a variety of types of disputes.

In RJ, the focus of the dispute resolution process is on accountability (acknowledgement by an offender that an injustice has been done); mending relationships with the victim(s) in the context of their broader community; and reducing incarceration and recidivism through all parties’ engagement in a collaborative decision-making process. The focus is on repairing the injustice that has occurred, and assuring positive future behavior.

In restorative justice processes, all relevant parties (e.g., victim, offender, community and customary leaders, as appropriate) are involved in the sanctioning process, and community members, who, along with the offender, determine appropriate reparation/compensation and how to reintegrate the offender back into the community. More information on restorative justice may be found in in Appendix A: Alternative Dispute Resolution (ADR)/Collaborative Dispute Resolution (CDR) Procedures.

Chapter 5 Types of disputes currently occurring in Liberia that could benefit from Non-Judicial Dispute Resolution Procedures

Review of the literature did not identify one complete compilation of the kinds and frequencies of confusions, disagreements, disputes, palavas or conflicts that are currently occurring in the country.7However, individual articles and extrapolation from disputes in similar societies enabled the creation of a fairly detailed list of common disputes. (See Table I: Disputes in Liberia.) An examination reveals that there are a wide variety of conflicts, with a range of involved individual and collective actors. They occur in multiple arenas – families, clans, communities, urban areas, institutions (schools, businesses, etc.), and may involve different levels of tensions and actions including both non-violent and violent behavior. The levels of dispute are also often played out using different processes.

Table 1: Disputes in Liberia

(Participants and/or Issues)

Family disputes

Between husbands, wife/wives or multiple family members over:

  • Alcohol consumption*v

  • Poor treatment*

  • Dysfunctional conjugal relations

  • Infidelity between married parties*

  • Abandonment/failure to support*

  • Mismanagement of family funds

  • Divorce/separation*

  • Support for children’s education

  • Spousal support after divorce

  • Child custody

  • Child support after divorce

  • Family affiliation and support of children born to a previous marriage or outside of marriage (*)

  • Sexual relations between unmarried people*v

  • Teenage pregnancy

  • Marriage

  • Forced early marriages

  • Intermarriage between persons with different religions

  • Dowries

  • Cohabitation

  • Child/wife neglect or abuse

  • Inheritance (rights, money, goods, property or land)*

  • Inheritance without a will

  • Women’s rights*

  • Children’s rights

Housing, land and property (HLP) disputes (Urban and rural)

Between diverse parties over:

  • Customary use rights (*)

  • Statutory rights or ownership of land

  • Documents and documentation (possession/nonpossession, validity/fraudulent, Tribal Certificates vs. deeds/titles) (*)

  • Location of house spots (*)

  • Access to farmland (*)

  • Access, use right or ownership of natural resources on land (*)

  • Ownership of swampland

  • Illegal land sales (*)

  • Multiple land sales (*)

  • Land grabbing (*, mp, v)

  • Illegal occupations (*, mp, v)

  • Forced evictions

  • Encroachment*

  • Boundary disputes (between individuals, clans, wider communities, etc.) (*, mp, v) Terms for restoration of illegally occupied HLP

  • Terms for compensation for losses of HLP (*)

  • Inheritance Resettlement in host communities (v)  Women’s HLP issues (*)

Church property issues (mp)

Table 1: Disputes in Liberia (Continued)

(Participants and/or Issues)

Civil, Labor and Commercial Disputes

Between diverse parties over:

  • Loans and debt repayment (*)

  • Wage disputes (*)

  • Working conditions disputes

  • Commercial operations location (mp, v)

  • Relations between traders (*)

  • Trafficking of migrant workers

Disputes over customary or religious issues and practices

Between and/or over multiple issues:

  • Differences between individuals/ groups over diverse cultural beliefs/practices/religions (*, v)

  • Disputes within churches

  • Disputes between churches

  • Conflicts between churches and neighbors

  • Spreading false information about other religions

  • Forced initiations

  • Conflicts between members of secret societies and non-members (mp, v)

  • Practices of witchdoctors, witchcraft and spells (*)  Ritual killings

Clan/community disputes

Between multiple parties and over multiple issues:

  • Sharing of community resources

  • Refusal to perform community service – brushing roads or making communal farms(*)

  • Intra or inter-clan/community (*, mp, v)

  • Host communities and “strangers” (*, mp, v)

  • Interactions with and between traders from different communities (*)Members of communities and government officials carrying out their duties

School conflicts

Between multiple parties and over multiple issues:

  • Student-student (*, v)

  • Student-faculty

  • Student-administration

  • Faculty-administration

  • Faculty-faculty

  • Parent-teacher

  • Parent-administration

Juvenile Justice

Between multiple parties over:

  • Cursing or disrespectful behavior (*)

  • Disorderly conduct

  • Selling goods on streets

  • Truancy

  • Theft/pilferage (*)

  • Vandalism (*)

  • Child labor (*)

  • Teenage prostitution

  • Fights without or with significant physical harm (*, v)

  • Other acts defined in the penal law including rape, murder and other heinous acts

Disputes involving minor criminal offenses/misdemeanors

Between victims/offenders over:

  • Disagreements over borrowing, use or disposition of property (*)

  • Vandalism and damage to property

  • Minor theft/pilferage (*)

  • Breach of the peace – noise and profane language

  • Fights with no significant physical harm (*, v)

Serious Criminal disputes(non-gender based) Between the state, offenders and victims over:

  • Fraud/corruption (*)

  • Killing domestic animals

  • Assault with bodily harm (*, v)

  • Murder/homicide (*, v)

  • Mob violence (v)

  • “Jungle justice” (v)

Serious Gender or Age-based Violence or Practices

Between genders over:

  • Spousal abuse/domestic violence (psychological or physical)* (v)

  • Child abuse

  • Customary initiations

  • Rape* (v)

  • Rape in marriage* (v)

  • Female genital mutilation (v)

  • Human trafficking

Key Most common types of disputes - *

Potential for or actual violence to property or persons - v (Those without a ‘v” are usually resolved non-violently) Potential to be multiparty disputes – MP

Table 1: Disputes in Liberia (Continued)

(Participants and/or Issues)

Accused, Victims, Prison and Prisoners’ Disputes

Between the state and prisoners over:

  • Police handcuffing

  • Unlawful detention (*)

  • Extended pre-trial detention (*)

  • Delays of court hearings (*)

  • Treatment during incarceration (*, v)

  • Provision of food/visitation (*)

  • Prison terms for non-violent offenses (*)

  • Release of offenders into communities because of lack of jails or without trial (*)

  • Behaviors of prisoners/prison personnel (*, v)

Environmental and natural resource disputes

Between multiple parties over multiple issues:

  • Planting and impacts of/on crops and trees (*)

  • Damage or harm to a natural resource (*)

  • Activities of artisanal miners

  • Harvesting practices

  • Pollution

Concessions, Communities and Government Disputes Between two or more parties over:

  • Prior and informed consent (*)

  • Encroachment and/or Impacts on/ loss of livelihoods (*, v)

  • Resettlement

  • Compensation for losses (*)

  • Concession granting process (*)

  • Benefits received, process for distribution and mismanagement (*)

  • Labor issues – contracts and promised jobs

Key Most common types of disputes - *

Potential for or actual violence to property or persons - v (Those without a ‘v” are usually resolved non-violently) Potential to be multiparty disputes – MP

Family Disputes

Family disputes are the most common type of conflict in any society. Liberia is no exception. Participants in focus groups and interviewees in the four counties identified family conflicts as the most common and one of the two, along with land, that are the most important to resolve. A recent quantitative study of 1,200 randomly selected respondents in five Liberian counties – Grand Gedeh, Sinow, River Gee, Grand Kru and Maryland – drew similar conclusions.8 Researchers found that close to one quarter of the respondents in this latter study had been involved in some kind of significant dispute or palava in the last 12 months. Of these, twenty four per cent involved a divorce, spousal dispute or a loving problem, and six percent involved inheritance issues.9

There are a broad number of types of family disputes involving a range of actors – husbands and wives, multiple wives, children, sexual partners outside of marriage, the elderly and extended family members. The sources of conflict range from differences and disagreements over acceptable attitudes and behaviors of family members, spousal support, recognition and supporting children from parties’ previous marriages or relationships, treatment or abandonment of spouses or children, sharing or inheriting assets, and, at the more extreme end, various kinds of psychological or physical abuse. A number of studies indicated that family disputes are often exacerbated by excessive consumption of alcohol.10

With some exceptions, most family disputes are commonly handled within the circle of family members. When this is not possible, rural Liberians often turn to customary authorities, or potentially secret societies, for resolution assistance. In other countries and societies, third parties from either civil society or connected to government institutions often provide collaborative dispute resolution services, but these are less common in Liberia, with the possible exception of churches. More will be said about potential dispute resolution processes for these types of conflicts later in the study.

Housing, Land and Property (HLP) Disputes

Housing, land and property (HLP) disputes are some of the most frequent and important to citizens. They were overwhelmingly identified by the majority of participants in focus groups, interviews and the Desk Review as one of the top two categories of conflicts, along with those in families, which need to be addressed and resolved. Their importance is primarily related to their potential or actual impacts on the abilities of people to secure livelihoods; have peace and stability in communities, between neighbors and within families; and impacts on the rights of women, youth, strangers and those who are differently abled.

These conflicts are often very complicated as they involve not only contests over allocation, possession, “use rights” and statutory rights over contested assets – houses, land or other property – but issues related to who is a member of a community and who is a “stranger”; means of securing an adequate livelihood; individual, family clan definitions of self; issues of honor and continuity with the past and ancestral homes.11 12

These disputes also vary depending on who is involved – from just two individuals, to families, to larger groups and communities. In general in Liberia, there are probably relatively few disputes that just involve only two individuals, as individuals are generally representatives of a larger group, such as a family, and they are often connected to a network of other relationships and people who are often interested in the dispute, resolution process and outcomes. In this respect, most land disputes are multi-party disputes. Finally, land disputes in Liberia also occur in different arenas – rural and urban.

Land disputes in Liberia are handled in the context of two legal systems and sets of dispute resolution providers – statutory and customary. Statutory disputes involve land where disputants have legal titles, deeds, or other documents or agreements covered by statutory law. These disputes are generally addressed and resolved by the state’s judicial adjudicative process and various levels of courts, beginning with the Circuit Court where they are heard by juries.

Binding decisions are rendered by applying statutory law. However, only a minority of land disputes, even those covered by statutory law, are likely handled by the statutory system. One study conducted for the Liberia Land Commission of civil and criminal action-based land disputes handled by the Eighth and Ninth

Judicial Circuit Courts and Magisterial Courts in Bong and Nimba Counties between January 2008 and July

2009, found of there were relatively few land cases in the statutory courts during the period of study.13Court officials said that most cases had been referred to other institutions or individuals – Land Commissioners, elders and non-governmental organizations for resolution. The study hypothesized that the reason for courts not handling these cases was likely due to their inability to provide the rapid justice desired by disputing parties, litigation costs and lawyers’ fees, difficulty in securing legal representation, complexity of cases and physical accessibility of the courts. While the study did not examine the handling of land disputes by courts from across the country, the researchers concluded that the trend is likely the same in other counties. However, a Circuit Court judge in Bong County interviewed for this study indicated that there were currently many land cases in her court.)

Customary laws are standards, procedures and common practices used to manage land and property held by a customary “land owner”, be they an original owner of the land or the recipient of a “use right” received from them. In general, most customary land “use rights” are passed from generation to generation following a patrilineal process.

Customary law and practice address issues such as land allocation, division, transfers and to whom they are or are not allowed; what is and is not allowed to be planted, harvested or used on said land; rights to and use of natural resources; and inheritance rights and divisions.14 For the most part, customary law is unwritten and is “codified” in the minds of customary leaders through verbal communication with owners of the land and elders, observation and participation in the resolution of past cases and through traditional institutions such as the Poro and Sande secret societies These societies provide education on basic traditional practices and training in terms of cultural values and identities of indigenous communities. (More will be said about these entities in the next section.)

Customary dispute resolution procedures are those carried out by customary authorities through chiefs’ courts15. The majority of land disputes in Liberia, especially in rural areas, are handled using these mechanisms, procedures and personnel.

In addition to statutory and customary dispute resolution mechanisms and procedures, additional services are provided by non-governmental organizations (NGOs). One of the major providers in this category is the Norwegian Refugee Council’s Information, Counselling and Legal Assistance Project (ICLA). Some demographics and characteristics of cases handled by ICLA include:

  1. 72% of all parties to land disputes that ICLA registered are IDPs; 40% are refugees [Note: someone can identify as both a refugee and an IDP [Internally Displaced Person] and that ICLA is mandated to handle these kinds of cases].

  2. 34% of cases are between men and women and include at least one woman (but overall, ICLA serves more men than women, given the patterns of land management in Liberia).

  3. Disputes where ICLA intervenes are frequently violent; 40% of individuals report abuse; 10% of individuals report an act of violence with a weapon.

  4. Almost 20% of cases report that money (or lack of resources) was one reason the dispute was difficult to resolve.

  5. While inter-ethnic disputes [involving land] are not more difficult to resolve, disputes with high levels of cultural and religious ties, as well as very large plots of land, are correlated with longer and more violent outcomes.16

An example of an inter-ethnic/community dispute over land with cultural and religious components occurred in Nimba County between members of three tribes - Mandigos, Gio and Manu. Prior to the conflict in Liberia, members of the tribes intermarried across community lines. In some cases, land was allocated or sold by the land owners of one tribe to a spouse from another who had married into the community of the land owner. For example, Mandingoes who married daughters of the Gio and Manu tribes were often allocated land to promote peaceful co-existence. After the civil conflict, conveyances made to members of the Mandingoes who settled on and developed the properties allocated to them have, on occasion, found it difficult if not impossible, to reclaim the previously owned land . This conflict had taken both tribal and political dimensions, which courts find difficult to settle. The Government of Liberia, through one means of settling this deep rooted conflict, appointed the Musa Bility Committee to investigate and recommend solutions to the conflict. To date the recommendations are yet to be examined and implemented.

Civil, Labor and Commercial Disputes

Civil, labor and commercial disputes are common in all societies. They occur between individuals and/or groups– friends, neighbors, customers and businesses, commercial partners or businesses that are owned or operated by members of different clans or communities. Participants in focus groups and interviewees indicated that these types of disputes were quite frequent in Liberia, but did not rank them at the same level of importance as family, housing, land and property conflicts. Issues involved include, but are not limited to interpersonal relationships, neighbor-neighbor issues, loans and debts, purchase prices, expected performance, terms of contracts, defaults on payments, locations and terms of operations for businesses and so forth. Since the end of the civil war, there have been a number of disputes between members of different ethnic communities – especially Mandingo – over returns of business properties, and places and conditions for conducting business.

Many civil disputes in rural areas are handled by customary authorities. However, in urban areas, there is a lack of alternative mechanisms if they cannot be resolved informally.

Some commercial disputes are and can be handled by Market Associations and others by customary dispute resolution processes. They could also be resolved by other non-judicial dispute resolution procedures, as widely practiced in a number of other countries.

Disputes over Customary or Religious Issues and Practices

Another area of disputes, which are probably not as large in number and often less visible, are those between different customary and religious groups over customs and practices. Participants in focus groups for this study indicated that these disputes were not uncommon, especially in rural counties.

Many disputes with religious components are somewhat private in nature in that they occur in the context of local interactions between members of different religious groups. Occasionally, however these disputes become public, such as when members of secret societies do not want non-members to observe their ceremonies or activities and try to restrict the presence of the latter when they are occurring.

Disputes between churches themselves also occur, but there is little data available about them. Additionally, disputes do develop over use and terms of occupation of church property, a variety of land dispute. An example is that of the Ganta Methodist Mission and illegal occupants of church lands.17

Another area of dispute is over customary practices of witchcraft, spells, ritual sacrifices and female gentile mutilation (FGM). Many of these disputes are played out at family, clan and community levels. FGM, however, has moved into the international arena where international and domestic opponents and local advocates of the practice have clashed repeatedly in the press.

For the most part, religious disputes tend to be addressed and resolved by ad hoc interventions by customary authorities, religious/church leaders, non-governmental organization dispute resolution providers or authorities in secret societies. They could in the future be addressed by other non-judicial dispute resolution mechanisms and procedures.

Clan/Community Disputes

On occasion, disputes develop between members of different clans and communities. Probably the most common disputes of this type are over historical or current boundaries between groups, and activities where members of different clans or communities interact with each other. An example of this kind of dispute occurred between Selega and Samodu, two towns in Lofa County over the physical boundary between the two communities.

Clan/clan and community/community disputes are often difficult to resolve either by formal statesponsored courts or by customary mechanisms. State courts generally rely for decision making on statutory laws, standards or documents, which are often not applicable or non-existent in many of these types of disputes. In these cases, state-courts must rely on testimony of clan and community leaders to guide judgments.

If these cases are to be handled by customary leaders, mechanisms and procedures, there generally must be a bridging individual or group that is respected, trusted, and accepted by all disputants and who ideally has some informal or formal customary or other authority to make either non-binding recommendations or decisions regarding issues in dispute. Individuals and groups with these qualities are often not easy to identify, as leaders from one group of disputants are often not acceptable to the other. It is possible to overcome this hurdle if disputants are members of clans under a paramount chief or a

County official with some authority over disputants and who is acceptable to disputing parties is available

as an intermediary. Additionally, the autonomous National Traditional Council of the Republic of Liberia, now called the National Council of Chiefs and Elders of the Republic of Liberia), with a mandate “to preserve, protect and foster positive Liberian traditions cultural heritage and traditional institutions and assist government sustain peace, reconciliation and reunification”, has and can play the role of intermediary by providing respected customary leadership with members who are either independent of the groups in dispute or involve respected leaders with more impartial third parties as co-mediators.18An example of the National Council of Chiefs and Elders of the Republic of Liberia playing an intermediary role was their initiative between members of the Lorma and Mandingo communities in Voinjima in Lofa County in 2010.18 The process involved case investigation, a ruling and judgment by the intermediaries concerning responsibility and guilt of the parties, an apology, commitments for future relationships between members of the two communities and provisions for how any future non-compliance would be handled.

In the future, these types of disputes could be addressed by other non-judicial dispute resolution mechanisms and procedures.

School and Juvenile Conflicts

Juvenile disputes are conflicts that involve minors. They occur in multiple settings and locales – within and between families; in rural areas, neighborhoods, towns and cities; and in institutions, such as schools. They may involve a variety of interactions between minors, or between minors and adults.

Disputes may arise over the behavior of youth, illegal offenses or their treatment during pre-trial detention or incarceration. A report by the International Crisis Group in 2006, noted that pre-trial detention was one of the major areas where abuse of justice was occurring.19

While there is a Liberian juvenile justice procedural code and a minimal juvenile court system established in 1997, the latter is still in a very fledgling state. Under the Juvenile Procedural Code a juvenile is someone under the age of eighteen. However, the age of criminal responsibility under the Penal Law is sixteen. If a youth is accused of an offense, and is sixteen and up to eighteen years of age, judges have the discretion to hear the case with the defendant as an adult and conduct a regular trial, or as a juvenile under the Juvenile Procedural Code.

The Juvenile Court in Montserrado County hears few cases compared to those heard by Circuit Courts. Outside of Montserrado there are no juvenile courts. Juvenile cases in these counties are generally heard by Magisterial Courts. The juvenile justice procedural code is often not followed in practice.

Moreover from a general overview of the entire Juvenile Justice System, Liberia has yet to build an effective system based on the pillars of Parens Patriae (meaning the state is the father of the child and will do all that is necessary to protect the best interest of the child equivalent to that that is expected to be provided by parent(s).

Judges often have limited knowledge about or do not follow the Juvenile Justice Procedural Code, and often lack specialized skills in handling juvenile offenses. For example, some magistrates have not known that under the juvenile code, minors awaiting trial should not be considered under arrest and that holding them should only be considered as a protective measure until their parents and guardians can be contacted.20

In addition to the above problem or gap, practitioners in the Juvenile Justice System frequently do not have necessary skills required for treatment of Juvenile offenders, and conform to the rules that 1) a child is not regarded as responsible for his criminal conduct until he had attained a legal statutory age as an adult, and 2) a child is accused of a crime but suffers no punishment as an adult criminal because of the child’s inability to conceptualized between right and wrong.

In cases where juveniles are alleged to have committed serious offenses, and where custody might not be given to the parents, the state lacks facilities for placement, treatment, and counseling for youth offenders. Because of prison stigmatization and recidivism, juvenile justice prohibits use of the name of “prisoner” for youth offenders, and facilities used for the treatment of juvenile offenders are often required to be named as treatment, counseling, and protection facilities, not prisons.

When juvenile offenders are held in a jail or prison, they are often placed in facilities that have separate cells, but where there are significant opportunities for interactions with adult offenders during periods for exercise, meals or using lavatories. The very fact that a child is kept in prison undermines the tenets and principles of the juvenile justice system.

One result of the lack of facilities and programming for youth offenders is repeated juvenile delinquencies, which undermine the goals of the country’s justice and social control mechanisms.

UNMIL’s human rights division has been training magistrates, court staff and police on juvenile law, and the American Bar Association (ABA) and UNICEF have been tracking and monitoring the progress of treatment of youth in prisons. A major focus of their efforts and the Liberian Association of Female Lawyers has been on the creation of rehabilitation programs in place of detention.

The Association of Female Lawyers and UNICEF have developed a referral system for police and prison wardens to refer youth involved in petty crime or loitering to night shelters and other organizations that can trace and connect them to their families. In addition a referral system has been set up for youth designated as juvenile delinquents to be sent to facilities, such as those supported by USAID, that offer vocational training, which hopefully will lead to future employment. UNICEF, with funding from USAID, has set up a number of these facilities that focus on war-affected children and the Support to War Affected Youth Project, offers “vocational skill training, literacy and numeracy, and trauma counselling… geared for former child soldiers”.21

The Child Justice Forum chaired by the Ministry of Justice also developed a juvenile diversion program that coordinates the activities of various justice system actors, and when appropriate, utilizes mediation to determine terms for diversion and treatment plans. Procedures and government provided programs that utilize mediation. More will be said about this initiative latter option later in this study on pages 46-48.

Disputes involving Minor and Serious Criminal Offenses

Criminal offenses, both serious and minor, are perceived by citizens to be a significant problem in Liberia. Participants in focus groups, interviewees and the Desk Review for this study identified both minor and serious criminal offenses to be a problem. This is especially the case in counties with large urban populations, such as Montserrado, but is also common in more rural ones. A study noted earlier in this document of 1,200 randomly selected respondents in five Liberian counties – Grand Gedeh, Sinow, River Gee, Grand Kru and Maryland identified that 22%, 12%, 4%, and 3% had been affected by domestic violence, theft, rape and other forms of criminal acts (assault, kidnaping and murder) respectively, within the last twelve months of the study, which ended in August of 2013.22

Focus groups for this study noted that there were significant problems with minor criminal offenses committed by both adult and youth offenders. Some of the most common of these involve criminal mischief, theft of property, menacing, criminal coercion, criminal trespass, bad checks, gambling, recklessly endangering another person, harassment, offensive touching, sexual assault, disorderly conflict, public drunkenness and so forth. The “Act to Amend Title 26 of the Liberian Code of Laws Revised” (2012) recently revised the classification of misdemeanors. Both minor and serious types of disputes and criminal offenses are handled by government statutory courts. Magisterial Courts are given exclusive jurisdiction over cases of petty larceny, misdemeanors of the first, second and third degree and all of the offenses and violations of the Vehicles and Traffic Law Minor except where another court in the same area has been given exclusive jurisdiction over these infractions (An Act to Amend Chapters 17 of the Liberian Code of Laws Revised, 2012).

Customary leaders are precluded by law from hearing cases involving either serious or minor disputes or criminal offenses. However, it appears from research and comments from interviewees for this study that some continue to handle minor offenses, especially in areas of counties where courts are relatively inaccessible due to the distance, the location of the offence, or poor road conditions, or where expenses for their use (court fees, transportation and accommodation fees) are prohibitive for litigants.

Sexual and Gender-Based Violence (GBV) Conflicts

UNHCR has identified five common forms of sexual and gender based violence: 1) sexual violence including “rape and marital rape; child sexual abuse, defilement and incest; forced sodomy/anal rape; attempted rape or attempted forced sodomy/anal rape; sexual abuse; sexual exploitation; forced prostitution; sexual harassment and sexual violence as a weapon of war and torture: 2) physical violence including physical assault and trafficking/slavery; 3) emotional and psychological violence including abuse/humiliation and confinement; 4) harmful traditional practices which include female genital mutilation (FGM), early marriage, forced marriage, honor/willing maiming, infanticide and/or neglect and denial of education for girls or women; and 5) socio-economic violence including discrimination and/or denial of opportunities, services; social exclusion/ostracism based on sexual orientation and obstructive legislative practice”.23 All of the above have, to some extent, occurred in Liberia, both during the Liberian Civil Wars and in the post-conflict period.24According to the 2007 Demographic Health Survey in Liberia:

Rape constitutes 70% of those crimes reported to the police and other agencies. Women between 25the ages of 15- 49 are the main victims, with 17.6% of women in that category having experienced rape at some point after the war had ended. 22 % of the female victims of SGBV, in the 25-39 age groups, have been raped.32% of the female victims of SGBV still live with the perpetrators, who are either their husbands or partners, while another 10.2% of the cases have been perpetrated by former and/or current boyfriend. Alarmingly, the armed forces have also been caught in this sordid practice, with 8.1%of the cases reported to have been perpetrated by either a police officer or a soldier.25 Further, according to a WHO Study in 2005, which covered several populated counties, 91% of the total sampled population of 1,628 women and girls, reported to have been victims of some form of sexual abuse. Outrageously, 75% of the same group had experienced gang-rape specifically. 26

UNMIL’s Report on Circuit Courts and Sexual and Gender Based Violence Consolidated Report 2010/1011 reported that in cases where there were records of ages of victims of sexual and gender based violence, 88% were under the age of 18.27 This finding was corroborated by AFFEL’s Assessment and Review of the Factors Affecting the Prosecution of Sexual and Gender-Based Offences in Liberia, from 2007, “the victims of rape and other sexual violence are as young as 9 months and children as young as 9 years”.28

While it has been argued that rape was not common in Liberia before the civil wars, and that these violent conflicts are the cause for its increase, data suggests that this is not the case. The AFFEL study notes that “… SGBV related crimes are not committed by hard core criminals known for committing similar felonies. Rather, rape and other sexual offences are committed by “persons whom the victims and their communities depend for guidance and protection – fathers, husbands, pastors, officials, elders, police, prosecutors, and young men and boys”, and not predominantly by ex-combatants and the armed forces.

Another issue related rape is the tension between statutory law and customary practices related to the age when a girl becomes sexually mature and eligible for marriage. In many traditional communities, the norm is fourteen. A male can propose to and marry a female at that age and engage in conjugal relations. This norm, according to traditional leaders and many members of their communities, has existed since long before the institutionalization of the formal justice system.

However, under the 2006 Rape Law, statutory rape occurs when a victim is under eighteen and the perpetrator over eighteen years of age [Section 14.70.1(b) 29 Tensions between statutory law and local cultural practices require a critical look and need to be reconciled.

Use of non-judicial dispute resolution procedures to address sexual and gender-based cases that involve violence is controversial. Care should be taken before considering and institutionalizing non-judicial procedures to process and handle these cases.30

Accused, Victims, Prison and Prisoners’ Disputes

A Judiciary sector working group (SWG) background paper reported:

Case backlog in circuit courts is estimated at ninety percent, while only four percent of cases on the docket of circuit courts are fully tried within a year… Flaws in record keeping practices exacerbate corruption risks, creating a milieu where evidence and case files are hard to track and sometimes may disappear altogether. Moreover, the lack of effective coordination mechanisms between the actors and institutions in the justice chain (police, prosecutions, defense, courts, prisons, and social services) cause further delays and inefficiencies.29

A significant portion of the magisterial courts on the roster of the Judiciary do not seem to be functioning. Many of the magisterial and circuit courts have very low case flows.... At present, access to justice is limited within the system as only one circuit court judge operates in most counties, and a number of specialized courts work only in Montserrado. Overall, the justice system is perceived as slow and inefficient.” 25

The conditions described above have led to a significant number of accused to be held in pre-trial detention. Although the law provides for the right of a defendant to receive an expeditious trial, lengthy pretrial and pre-arraignment detention remained serious problems. An estimated 78 percent of prisoners were pretrial detainees, despite the release of 710 during the year by the Fast Track Court and 26 by the probation program to reduce overcrowding...The corrections system improved its capacity to implement probation and provided mentoring of prosecutors. However, incarceration of new detainees kept prisons overcrowded. In some cases the length of pretrial detention exceeded the maximum length of sentence that could be imposed for the alleged crime. Judicial inefficiency, corruption, insufficient transport and court facilities, and poorly trained attorneys and judges contributed to trial delays.30

Conditions in facilities and treatment of detainees often lead to disputes between them and their families and staff of correctional facilities.

Environmental and Natural Resource Disputes

Liberians encounter a number of environmental disputes over water, sustainable agriculture and forestry and various kinds of pollution. Some of these are related to concessions, which are discussed the section below, while others involve various members of local communities, companies or governments. Examples of these types of disputes are contests over tenure, governance and market reforms that secure local rights to own, control and benefit from natural resources; issues related to state recognition of pit sawyers; and differences over practices for sustainable forestry and timber harvests.31

Environmental dispute resolution using non-judicial dispute resolution procedures has been practiced widely in other countries since the 1970s, and could be considered for use in Liberia.32

Concessions, Communities and Government Disputes

Prior to, during and after the Liberian civil wars, various governments granted large-scale natural resource concessions to private companies. Most of these are in the areas of forestry, agriculture (rubber and palm oil), minerals, and in the near future, petroleum. One study estimates that concessions have been allocated for between 25 and 75% of Liberia’s land.35 Frequently, concession land shave been poorly demarcated and already occupied by Liberian citizens who often were not consulted or gave their free, prior and informed consent (FPIC) prior to the changed land use. The concession granting process; social, economic and environmental impacts on communities; and minimal direct benefits to project affected people have led to increased conflicts. Many of the disputes are over land tenure, boundary and encroachment issues, loss of access to forest resources, failure of promised jobs to materialize, environmental degradation and loss of livelihoods. Some of the most serious conflicts have involved confrontations between companies and communities in Bomi, Cape Mount, Grand Bassa, Grand Gedah, Maryland and Sinoe Counties. 36

Although there are some regulatory frameworks in place concerning concessions and the procedures for them to be granted, there has generally been a lack of consultation between the government, concessionaires and project affected communities. There also appear to be inadequate corporatecommunity engagement, community benefit agreements or fully-functioning corporate-community grievance mechanisms. Participants in all four of the focus groups for this study indicated concessions as an area of conflict of importance to citizens.

A new Land Rights Policy was approved by the Land Commission of the Republic of Liberia on May 21. 2013. When implemented, the policy will give communities significant control over their lands and natural resources on them. Implementation, however, may also result in the emergence of new conflicts as communities struggle to define their boundaries with each other, develop new land management structures and procedures, determine systems for potential land ownership beyond customary use and offer concessions to future developers.

The use of voluntary dispute resolution mechanisms and procedures to address a wide range of concession disputes has been widely applied around the world.37 These non-judicial procedures should be considered for use and implementation in Liberia.

  1. De Witt, Land Rights, Private Use Permits and Forest Communities, Report for the Land Commission of Liberia, April 2012.

  2. “Agricultural Land Concession and conflict in Liberia Policy Analysis Brief.” Monrovia: Early Warning Response

Group, June 15, 1021; “Working for Development? Arcelor Mittals’s Mining Operations in Liberia.” Friends of the

Earth, June 2010; “Signing their Lives Away: Liberia’s Private use Permits and the destruction of Community-Owned Rainforests.” Global Witness, September 2012.; “We who live here Own the Land, Customary Land Tenure in Grand

Cape Mount, and Community Recommendations for Reform.” Monrovia: Green Advocates and the Forest Peoples

Program, December 2012; “Investments into the Agribusiness, Extractive and Infrastructure Sectors of Liberia: An Overview.” Washington, D.C.: Rights and Resources, 2013; and “Smell no Taste: The Social Impact of Foreign Direct Investment in Liberia.” New York: Colombia University, School of International and Public Affairs, January 2012.

  1. 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; Zandvliet, L. and Anderson, M. Getting it Right: Making Corporate-Community Relations Work. Sheffield, UK: Greenleaf Publishing, 2010; and Roundtable on Sustainable Palm Oil

Disputes that could benefit from the use of Non-judicial Dispute Resolution

The majority of disputes identified in Table 1: Disputes in Liberia, with the exception of capital offenses and first and second degree felonies, could benefit from the use of non-judicial dispute resolution mechanisms or procedures. Some of them – family, land and civil disputes – are already being handled by these procedures, which are provided either informally or formally by customary authorities, government officials and national or international non-governmental organizations. Care, however, should be taken when utilizing non-judicial dispute resolution procedures to address and help resolve disputes involving gender-based violence. If this option is pursued, a rigorous screening process should be implemented to assure cases are appropriate for this means of resolution, and the safety of participants, both during and after the process, can be assured.

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