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 7 – Types of Non-judicial Dispute Resolution Mechanisms and Procedures in Liberia, who provides them, and how they meet the needs of Citizens and Members of Marginalized Groups at the Local Le
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- Family, Informal/Formal Community Leaders
- Alignment of family or informal/formal community leader dispute resolution with the “Protect, Respect and Remedy” Framework: Legitimacy
- A source of continuous learning
- Based on engagement and dialogue
- Gaps and Recommendations
- Dispute Resolution by Eminent Persons
- Alignment of dispute resolution by eminent persons or groups with the “Protect, Respect and Remedy” Framework : Legitimacy
- Customary Dispute Resolution
- Chiefs’ Courts – The Customary Dispute Resolution Mechanism and Processes
- Presentations of parties views, a search for the ‘truth” and a decision on the merits of each parties’ case
Chapter 7 – Types of Non-judicial Dispute Resolution Mechanisms and Procedures in Liberia, who provides them, and how they meet the needs of Citizens and Members of Marginalized Groups at the Local LevelNon-judicial dispute resolution can be organized into systems, such as the customary dispute resolution system managed by the Ministry of Internal Affairs; mechanisms, such as specific chiefs’ courts; and procedures, such as arbitration and mediation processes used by chiefs to either make non-binding recommendations on settlements to parties in dispute or mediate voluntary agreements. Similarly, nongovernmental organizations (NGOs) can be dispute resolution systems with related mechanisms and procedures. For example, an NGO can provide a system to resolve land disputes, with mechanisms – voluntary dispute resolution approaches, documentation, education, and monitoring – and specific procedures for dispute resolution, such as mediation. Liberia has a long history of dispute resolution systems, mechanisms and procedures that are non-judicial and external to or only indirectly under state supervision or control. These include the ad hoc dispute resolution assistance or more formal procedures used by customary authorities and secret societies, governmental dispute resolution assistance and help provided by various national civil society and international non-governmental groups. Most of these strive to provide access to justice at the local level. Described below is a survey of current ADR/CDR systems, mechanisms and procedures in Liberia; how they are aligned with the “Protect, Respect and Remedy” framework; and gaps in their services or performance. Liberia currently has six non-adjudicative systems, mechanisms and related procedures for dispute resolution. (See Figure 1: Current Liberian Non-adjudicative Dispute Resolution Systems and Mechanisms.) Some of them are organized into systems with specific mechanisms and procedures within them. Others are more informal and consist principally of procedures. They include:
Some of these systems and mechanisms are augmented by “helping individuals or institutions” – such as the Center for National Documents and Archives; surveyors; entities that provide legal education, counseling and advocacy assistance; and the Liberia Land Commission’s Land Coordination Centers – each of which provides specialized assistance often needed or required by disputants and/or third parties to increase the effectiveness of voluntary dispute resolution and the development of durable solutions. Each of the above systems, mechanisms and associated procedures are described below with the study authors’ assessment of their alignment with the “Ruggie Principles”.37 
Family, Informal/Formal Community Leaders and Eminent Persons’ ProceduresFamily, Informal/Formal Community Leaders – Every society and community has informal procedures for the resolution of differences. Liberia is no exception43. These processes generally focus on the resolution of interpersonal, family or neighbor-neighbor disputes at the lowest possible level, and are commonly facilitated by people in informal or formal positions of authority – respected family members (frequently males), elders or other respected community leaders, such as Zoes. (These individuals are distinguished from chiefs who provide more formal customary dispute resolution services and procedures.) In these procedures disputants and third parties often strive for mutually acceptable consensus decisions, or acceptance or acquiescence to a recommendation by the third party on how the dispute should be settled reached through a process of conciliation, or on occasion a binding decision. If resolution fails at this level, or if the dispute is of a more serious nature – such as sex between nonmarried youth, adultery, serious domestic violence, an irreconcilable dispute between neighbors, etc. – disputing parties may choose to take their case to a customary leader or chief and a more formal customary process for assistance in resolving their differences. In these procedures, the third party makes an authoritative recommendation on what the parties should do to resolve their differences or makes a binding, but appealable, decision for them. Alignment of family or informal/formal community leader dispute resolution with the “Protect, Respect and Remedy” Framework: Legitimacy: These informal procedures are likely to be, but are not always, trusted and perceived to be fair and legitimate by disputants. Standards and criteria used for deliberations, recommendations or decision making too, are often commonly acceptable. However, they may not be favored by some women, youth or family members who have values and standards that are not aligned with more traditional community values. Some women are shifting their views regarding their roles in families and the world. Also, some youth no longer accord senior family members the respect that they held in the past. When these standards clash with the views, procedures, recommendations or decisions by family or community leaders, more conflict may result. Accessibility: These informal procedures are highly accessible. If resolution by an immediate family member or respected local community member is not feasible, it is generally possible to find another person within the community to provide needed assistance. Predictability: These informal procedures are generally well known with common expectations for the process and outcomes that are likely to result from their use. They generally, however, are not time bound, do not have time frames for each stage of the process or detailed provisions for implementing or monitoring outcomes. Commonly, community norms of obedience to decisions of elders and leaders of the culture induce acceptance and compliance with outcomes. Traditional community leaders and many participants in the system, mechanisms and procedures believe that resolutions secured through customary practices are final, with no exceptions, even though they are appealable to a higher chief’s court. Equitability: Due to the informal nature of these procedures, aggrieved parties may or may not have reasonable and equitable access to sources of information, advice and expertise necessary to engage in the dispute resolution process “on fair, informed and respectful terms”. This is often the case for women and youth. Women often lack information on their statutory rights, and may acquiesce to outcomes that do not reflect them. Transparency: Involvement in the process is transparent, but the standards and criteria for reaching an outcome may not be. This factor, on occasion, may undermine participants’ confidence in the procedure being used, and its ability to address and satisfy their interests. 34 Rights-compatibility: These informal procedures may or may not recognize or be compatible with either national statutory laws or internationally recognized human rights. This can be the case for women, youth, differently abled, the elderly, minorities or strangers.38 A source of continuous learning: It is not clear from the literature the degree to which customary authorities or participants in these procedures draw formal lessons learned or apply them to prevent or resolve future disputes or harm. However, from the point of view and belief system of many members of customary communities, the continuity of their practice based on age, experience, wisdom, oral teachings and ability to communicate with ancestors (which in their minds is very unique) does result in continuous learning and is the best mechanism for their culture to resolve disputes. Based on engagement and dialogue: In general, these informal procedures rely on direct or indirect engagement of disputing parties and at least some dialogue. However, in family disputes, the degree of dialogue versus the extent of advice giving may vary significantly. When local informal or formal community leaders are involved in providing dispute resolution assistance, who have no formal authority over disputing parties, there is a much higher likelihood that any outcome will be the result of dialogue and building a mutually acceptable consensus between or among involved parties. Gaps and Recommendations: The most significant gaps in these informal dispute resolution processes are likely patriarchal attitudes, lack of intermediaries understanding of women’s and human rights, domination of the process by male customary authorities, and lack of their education about effective interest-based problem-solving, negotiation and mediation procedures. The major way to address this gap is to present educational and training programs on national and international laws and norms and interest-based dispute resolution procedures. Currently, the Norwegian Refugee Council, the Carter Center and Catholic Justice and Peace Commission are the major providers of these programs, but they present them in only a limited number of counties and communities.45 Dispute Resolution by Eminent Persons – In addition to the informal procedures described above, most societies including Liberia make use of respected notables – individuals or groups of people, who while not having any formal authority over parties in dispute do have their respect and trust to intervene in serious inter-clan, inter-community or concession-community disputes. These individuals or groups are generally somewhat outside of the dispute and often do not have any direct connections or alliances with any involved party. Assistance from eminent persons or groups may be requested by disputing parties, authorized by a person or agency with authority to identify and appoint intermediaries (such as a government official) or initiated unilaterally by the intermediary or intermediaries themselves. Liberian examples are the Ad-Hoc Presidential Commission on the County Inter-Ethic Land Dispute assembled by President Ellen Johnson Sirleaf to address an intercommunity disputes between Mano, Gios, and Mandingos in Nimba County, or the intervention of Dr. O.B. Brandy, the Chair of the Liberia Land Commission, in his personal capacity to resolve a concession-community dispute.46 have no rights to claim a use-right for land. Richards, P. et al “Community Cohesion in Liberia: A Post-War Rapid social Assessment”, Social Development Papers, Conflict Prevention and Reconstruction.” Paper No. 21, Washington, D.C.: World Bank, January 2005. Interactions between local communities and “strangers”, and the latter’s difficulty in obtaining land are detailed in Corriveau-Bourque, A. “Confusions and Palava: The Logic of Land Encroachment in Lofa County, Liberia.” 2010.
Alignment of dispute resolution by eminent persons or groups with the “Protect, Respect and Remedy” Framework: Legitimacy: These informal procedures are likely to be, but are not always, trusted and perceived to be fair by disputants as long as the intermediaries are respected and credible and there is a common understanding of the procedures for dispute resolution that will be used – generally facilitated dialogue, mediation or conciliation with a non-binding recommendation. Accessibility: This informal procedure is not always accessible in that it requires either a request by disputing parties for assistance, an ad hoc unilateral initiative by the eminent person or group or action by an appointing authority. Additionally, eminent individuals and groups take time to identify, convene and prepare and may not be immediately available to intervene in a timely manner in a serious or potentially violent conflict. Predictability: Initially, procedures to be used may not be widely known by disputing parties. Some may expect a facilitated or mediated process, while other may anticipate a recommendation or binding decision. Procedures are also frequently not time-bound, do not have time frames for each stage of the process, specific times when a conclusion may be expected to be reached or detailed provisions for implanting or monitoring outcomes. Implementation and monitoring of agreements are often a major weakness of this procedure. Equitability: Due to the informal nature of these procedures, aggrieved parties may or may not have reasonable and equitable access to sources of information, advice and expertise necessary to engage in the dispute resolution process “on fair, informed and respectful terms”. This may often be the case for indigent or weaker parties. However, the informal justice system is not perceived by the traditional community members as being weak but strong; in fact, a position of weaknesses is how the traditional communities often see the formal justice system. They believe that the formal justice system does not accord equitable justice for the poor or indigents due to overloaded dockets of courts and corruption, the absence of truth telling or fairness in proceedings, amongst others39. Transparency: Involvement in the process is transparent, but the standards and criteria for reaching an outcome may not be. This factor, on occasion, may undermine participants’ confidence in the procedure and its ability to address and satisfy their interests. 34
Rights-compatibility: The customary justice system is rooted in the culture, local laws and practices of traditional communities in Liberia. They are seen by members of as representations of their identities and important symbols of their tribes and communities. Many of these laws and practices can be traced to the period before the introduction and institutionalization of the state’s statutory legal and judicial system. As such, these procedures may or may not be compatible with or recognize either national statutory laws, international agreements to which Liberia is a signatory, or internationally recognized human rights. This can be the case for women, youth, differently abled, minorities or strangers. A source of continuous learning: It is not likely that third parties to these ad hoc informal procedures will draw extensive lessons learned, or apply them to prevent or resolve future disputes or harm. The informal nature of the intermediaries’ involvement, and only low to moderate likelihood that they will be involved in similar disputes in the future, mitigates against the creation of an institutional memory of lessons learned. Based on engagement and dialogue: In general, this informal procedure relies on direct or indirect engagement of disputing parties and dialogue to promote dispute resolution. However, the degree of dialogue versus the extent of advice giving may vary significantly. When eminent persons with no direct authority over disputing parties are involved, there is a much higher likelihood that any decision reached will be the result of dialogue and building a mutually acceptable consensus. Gaps and Recommendations: This is a viable process for intervening and providing assistance in serious conflicts. Major gaps are their ad hoc nature, and lack of institutionalization of procedures and service providers. Some options and recommendations to address this gap include: a) establishing a governmental entity to address and handle inter-community and potentially violent disputes, b) training potential interveners in dispute resolution methodologies and procedures, c) recruiting a dedicated staff to either assist eminent persons, or provide direct services themselves, in appropriate disputes.48 Customary Dispute Resolution Customary dispute resolution mechanisms and related procedures are the most commonly used and preferred means of dispute resolution in Liberia.49 The USIP study, Looking for Justice: Liberian Experiences with and Perceptions of Local Justice Options, found that “Liberians are overwhelmingly dissatisfied with the formal justice system, particularly at the local level.”50 Their disenchantment is due to “a bewildering array of fees associated with the formal system including registration fees, gas money for police investigators, requirements that victims pay the cost of food for the detainees accused, lawyers’ fees, bribes, and indirect costs for transportation and time spent away from livelihoods. The formal system is also faulted for its lack of transparency and impartiality, and is widely believed to be a forum in which wealthy, powerful and socially connected people can enforce their will. Finally, the formal system is seen as ineffective and failing to enforce – or even to get to the point of making – judgments against offenders. Victims of crimes report feeling further victimized by their experience with the formal 48 Two models for providing such services include the U.S. Department of Justice, Community Relations Service, and the Standby Team of Mediation Experts available to the UN Department of Political Affairs.48The former has a staff of dedicated intermediaries who are mandated to intervene in serious community conflicts. The latter provides assistance to eminent persons appointed by the Secretary General to provide conflict resolution assistance in international political disputes, but the model could be uses in a national context. 49National Conference on Enhancing Access to Justice: “A Review of the Traditional and Formal Justice System in
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; 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 “Liberia: Resurrecting the Justice System”. Africa Report, No. 107, 6 April, 2006; ILAC Report, Liberia, 2003. 50 Isser, D., Lubkemann, S. and N’Tow, S. Looking for Justice: Liberian Experiences with and Perceptions of Local Justice Options, p. 3. courts, expressing astonishment that they would have to pay excessively while the perpetrators nearly always walked free”.40 Authorizing authority for the customary dispute resolution system includes the Constitution of Liberia that authorizes the right of practices of positive Liberian culture as contained in Chapter II , Article 5(b), which amongst others states that the ‘Republic shall : preserve , protect and promote positive Liberian culture , ensuring that traditional values which are compatible with public policy and national progress are adopted and developed as an integral part of the growing needs of the Liberian society.” Additionally, Article 34 (e) of the Constitution empowers the Legislature to, “constitute courts inferior to the Supreme Court, including circuit courts, claims courts and such other courts with such prescribed jurisdictional powers as may be deemed necessary for the proper administration of Justice throughout the Republic”. Other authorities are defined by the Rules and Regulations Governing the Hinterland of Liberia (“Regulations”), which are to be revised and published each year, Rules and Regulations Governing Local Government Officials and of the Political Subdivisions in Liberia, and a series of decisions by the Liberian Supreme Court41. The Regulations establish the structure of the customary court system, give chiefs the authority to preside over all domestic and cultural matters, define procedures for handling cases, require that chiefs maintain public “courthouses” and mandate that all proceedings be conducted in public. In the area of domestic relations, the Act to Govern the Devolution of Estates and Establish Rights of Inheritance for Spouses of Both Statutory and Customary Marriages recognizes and incorporates the Domestic Relations Law and the Decedent Estate and Trust Law of Liberia and allows them to be applied in in Traditional Courts under the Ministry of Internal Affairs. The Superintendent’s Court under the Ministry of Internal Affairs handles traditional marriage and divorce cases, presumably to assure that women’s rights are respected. The New Penal Law of Liberia also recognizes differences between statutory and customary law and practices in its definition of polygamy under statutory crimes. Polygamy does not apply to marriages that occur in customary communities and under customary law of Liberia.42 The customary dispute resolution system and mechanisms are composed of a hierarchy of Tribal Governor’s Courts and Chief’s Courts43. They historically and currently operate under the Ministry of Internal Affairs, and are not part of the national judicial system. Tribal Governor’s Courts are found in urban areas. Tribal Governors assume their position as a result of a consultative process conducted within their local tribal communities. A number of Governors are women. Once appointed, Governors are inducted by the County Superintendent and serve for life. In urban or semi-urban areas with citizens from mixed ethnic or religious communities, ethic or Muslim “Governors” handle customary claims of citizens of the same ethnic or religious affiliation.44 Like Chiefs in Tribal Courts, which are described below, Governors utilize and apply customary norms of equity to resolve disputes. Tribal Chief’s Courts are found in local communities. They are presided over by chiefs, who are identified by a number of procedures: a) their hereditary position, b) election by members of their community, or c) recognition and appointment by the Ministry of Internal Affairs. Chiefs’ courts are part of a linked hierarchy of “chiefs’ courts”, each of which is presided over by a different level of chief. The order of precedence is: a) the Quarter or Town Chief’s Court, b) the Clan Chief’s Court, c) and the Paramount Chief’s Court. Chiefs are commonly assisted in fulfilling their dispute resolution functions by Chief Elders and members of a Council of Elders, who are highly respected individuals selected by members of their communities. Their function is to promote peace and stability in the community.45 46 The existence of different levels of Tribal Courts allows for appeals if a disputant is not satisfied with the outcome of an earlier court’s recommendation or decision. In the event that a party to a dispute does not accept the outcome of one of the lower chief’s courts, he or she may appeal up to the highest level of the Chiefs’ Courts, that of a Paramount Chief. If he or she is still not satisfied, an appeal can be made to the Court of the District Commissioner. Failing a satisfactory outcome there, the disputant can make yet another appeal to the Court of the County Superintendent. Beyond these courts, a case may be appealed to the Minister of Internal Affairs and the President.47 Cases may also be taken to the National Council of Chiefs and Elders of the Republic of Liberia head by the Chief of the National Council of Chiefs and Elders. Disputants may also move their disputes from the customary system of justice to the state’s judicial courts. A party may transfer a case to a statutory court when: 1) he or she does not accept, refuses to use or is dissatisfied with the customary justice system, its mechanisms or an outcome; 2) he or she believes that his or her statutory rights have been denied or abused by the customary justice system, which may occur in the context of either a civil case or a customary authority’s inappropriate involvement in a criminal suit; and 3) statutory court system has jurisdiction over the matter in dispute; or 4) the Supreme Court of Liberia has original jurisdiction and the issue is strictly a constitutional matter.48 Presently, customary leaders are specifically mandated to handle cases that are strictly traditional in nature, although there is a lack of clarity regarding what constitutes “traditional matters”. 49 “Chiefs seem to be aware of the state policy forbidding customary courts from handling matters of serious crimes, and for the most part they seem to adhere to this policy. However, chiefs and rural Liberians alike generally believe that many kinds of serious crime would be better handled by chiefs than the formal courts, and in practice chiefs often hear such cases when requested by both parties.”60 Based on the report on the National Conference on Enhancing Access to Justice held in 2010, and results of interviews and conclusions of focus groups for this study , there is a significant need to address and clarify the authorities and jurisdiction of customary authorities in the resolution of disputes. Participants in the National Conference on Enhancing Access to Justice agreed that the formal state statutory courts should handle cases involving capital offenses – murder, rape and treason; felonies – armed robbery and mayhem; disputes involving international actors and Constitutional issues.50 However, a significant number of participants in all of the above consultations believe that customary authorities and processes have the capacity to effectively handle and settle many types of minor criminal disputes or offenses. Customary authorities believe that cases involving minor criminal offenses have in the past been effectively handled and resolved using non-judicial dispute resolution procedures, and that they should be given authority to hear these cases in the future, especially where guilt has been acknowledged by an offender. They believe that customary leaders and procedures will be able to reach fairer, durable and culturally acceptable solutions than may possibly obtained through the formal justice system.51 Some of the current dispute resolution authorities that customary leaders want to retain, or have given to them in the future, include: resolving land and boundary problems (in which they are currently actively engaged) , settling farming and labor altercations, handling minor criminal offenses, addressing violations of village or town laws,, hearing cases involving traditional marriage and divorce (which is currently being handled by the Superintendents’ Courts of the Ministry of Internal Affairs) investigating drowning and mysterious deaths, resolving issues over the use of witchcraft, and issues arising from Poro or Sande societies. They would also like to define and have the option of using “good sassywood”, as part of their customary dispute resolution processes. Consideration to expanding the authority of customary leaders to handle minor criminal offenses may be in order given public perceptions of government courts and the difficulty they are currently experiencing in handling the high volume of minor criminal offenses. A stakeholder survey conducted in September and October of 2011, in which 1458 persons (equal males and females) were interviewed in 9 of the 15 counties in the country. When asked about functioning of the state justice system and to respond to the following question, ““Has the administration of transparent justice improved in your community since 2008?” 46 percent responded “no” and 46 percent “yes”.52 In the fore-mentioned study of 1,200 randomly selected respondents in five Liberian counties, 36% of the respondents in Grand Gedeh County believed that town chiefs were a better place to solve conflicts over stealing, versus 20% favoring either a government court or the police. In Maryland County, 34 % of respondents thought that town chiefs were preferable to courts (27%) or police (21%). Similar statistics regarding preferences were found in Sinoe County. (In Grand Kru, and River Gee Counties, however, respondents preferred courts over town chiefs to resolve problems involving theft by 46% and 23%, and 45% and 27% respectively.53 Even for palavas involving injury, a significant number of respondents, between 15 and 37% in two counties and between 26 and 29% in three others, thought that town chiefs were the best place to solve these types of disputes in comparison to courts or police.65 Additionally, there are significant pre-trial detention problems which might be addressed by customary authorities being involved in pre-trial hearings to work out solutions for admitted offenders. However, there are concerns about and criticisms of the customary system. Some of them were raised by interviewees for this study, especially those involved in the statutory justice system, and in various reports analyzed in the Desk Review. A frequent critique of the customary system by the Judiciary is that customary leaders, who are administrators under the Ministry of Internal Affairs (MIA), are performing judicial functions which are prohibited by the constitution and numerous judicial decisions. According to a strict legal interpretation, for customary leaders to serve in the capacity of judges, they would have to be separated from their roles and as executive administrators under the MIA. A 2006 Report of the International Crisis Group reported that: Discrimination and inequality within customary law forums is common. The decisions of town, clan and paramount chiefs working under the Ministry of Internal Affairs are often marked by bias and excessive fines, and they do not receive independent review from statutory courts. Unpaid and untrained chiefs often wield judicial powers over and above their mandated authority and are routinely complicit in forced labour practices. Fines are often the driving force behind decisions, although Crisis Group interviewed chiefs who insisted that they only accepted ”cold water” or small tokens of appreciation for their judicial services, human rights offices routinely receive complaints about excessive fines (Crisis Group interviews, human rights observers, Monrovia and Tubmanburg, 11-21 January, 2006) Chiefs also routinely preside over criminal cases outside of their jurisdiction and sentence people for crimes the statutory courts should handle. Due to the dearth of correctional facilities and blatant opportunism, some chiefs illegally detain people and employ forced labour on their private property.54 While this report is eight years old, and significant efforts have been made by the government and a number of groups to increase the credibility and performance of customary authorities, no doubt some of these conditions continue to exist. 55 56 Another concern is that, some customary standards of justice are at odds with statutory or international norms. The justice system in some communities allows for forms of inequality in human relationships. For example, while views vary from community to community, it is commonly believed that a son, child or younger person should not do wrong to an older person or elder. A child who is in a conflict with an elder or parent when called to settle the dispute, and even if they did not commit any wrongdoing, is often expected to first make an apology and seek pardon before any attempt is made to resolve the issues in dispute. This norm is seen as a means to maintain discipline among members of communities and preserving important cultural values regarding interactions between elders and youth. Yet another concern is that customary laws, standards and criteria used by chiefs to make decisions, and the outcomes of similar disputes, may on occasion significantly vary. This may be true within customary jurisdictions, communities and across the country. It is the result of different customary laws and understandings and practices of individual third parties, characteristics of the involved parties who are involved and the desire of chiefs and community members to secure a settlement that fits the case. While some tailoring of terms in mediated settlements may be acceptable to parties because they have voluntarily agreed on them, third party decisions on similar disputes should result from the application of similar laws and standards and have similar outcomes, regardless of who is involved. Finally, diverse dispute resolution procedures are used by customary authorities. Some are more mediative; others are adjudicative. There is not a problem with the use of different procedures by customary authorities as long as the process to be used is clear to disputing parties. A concern, however, arises when the intermediary’s role and procedures to be used are not presented to and agreed upon by disputants, which can result in a process and outcome that is unacceptable. If customary authorities are given responsibility for handing additional types of cases, measures will need to be taken that respond to and address some of the issues and concerns listed above. Measures will be needed to increase the credibility of and respect given to customary authorities by the government and their communities. Standards of behavior will need to be established that customary leaders are incorruptible, and consequences for non-compliance. Additional standards will need to be established for fees charged for services, acceptable consequences or punishments that are allowed, and laws and criteria to be used to guide voluntary settlements or third-party recommendations or decisions. Chiefs’ Courts – The Customary Dispute Resolution Mechanism and Processes If the mandate of customary authorities to resolve disputes was expanded, what types of procedures are they likely to use? The study Looking for Justice, notes that “customary justice proceedings resemble a form of non-binding arbitration, with additional elements of mediation. It is like arbitration in that the decision makers investigate the facts and pronounce a judgment to establish the ‘truth’ and the sanction for the party at fault. Both customary justice providers and local users are very consistent that the rulings pronounced in a customary justice setting are not binding in the sense that they can be, and often are, appealed to higher authorities in the customary system or formal system itself. ”57 The mediation component of the chief’s role and process is indicated by the general goals of the dispute resolution effort – a balance between determining right and wrong and facilitating social reconciliation. Chiefs frequently talk about “compromising a case”, a term which implies finding a solution in which satisfies all parties interests to an acceptable degree, and enables them to end the dispute resolution process “with smiles on their faces”. 69 The intermediaries who participate in customary procedures often vary depending on the case. They may include the chief of the court, elders, and, as appropriate, representatives of social groups within the community – family or clan members of disputants, neighbors, women or youth or others who may have relevant information or input about the parties and issues in question. Additional people may be called to engage in the process and deliberations or to serve as witnesses. This broad consultation helps provide further knowledge and information to the decision making process, cross-check testimony, consider broader stakeholder interests than just those of the immediate parties and enables the intermediaries to develop solutions that address the deeper social factors that are influencing the dispute. In general customary dispute resolution often, but does not always include some or all of the following activities and components: Presentations of parties views, a search for the ‘truth” and a decision on the merits of each parties’ case– Generally chiefs facilitate a presentation by each party on their views of the dispute its history, development, relevant facts, root causes, merits of claims, and information on the decision that each disputant desires. There are often multiple opportunities for questions, answers and discussion of viewpoints. Parties may call witnesses who testify on issues in question. The goal of this component of the process is to enable the chief and his associates, and ideally the parties themselves, to determine the “truth’ behind each of the claims and arguments, and to identify the fundamental root issues and social factors that have led to the development of the dispute. One chief described his process this way, and contrasted it to formal court proceedings. “When you see cow toilet somewhere, on the top it is dry while beneath it is wet, so it is with these government. When they handle such a case [the one he was referring to] they are not familiar with, they only deal with the surface and leave the root cause. We as traditional leaders live with the people and we know the root causes of some of the conflict that is what puts [us] in a better position to be able to solve it.”58 The degree of formality and resemblance of customary procedures to a formal statutory judicial hearing varies from community to community and the personal approach of the chief and any other individuals he selects to work with him in to the process. Some chiefs see themselves as “judges” while others see their roles as being more facilitative mediators. The conclusion of this stage of the customary dispute resolution process is reached when: a) one party admits responsibility or guilt for an action or harm to the claimant, which is not unusual once a process that is perceived to be fair has started, and the third party accepts his/her admission; b) joint deliberations by the parties and the intermediaries which results in an agreement by the parties on the merits of each one’s case and who is responsible for any actions or harm; or c) a decision and non-binding recommendation is made by the intermediaries on the merits of the parties’ cases and who is right or wrong, guilty or innocent. This latter option seems to be quite, if not the most, common. This stage of the process may often be handled in a more adjudicative manner, especially if the responding party does not recognize their role in the dispute, take responsibility for harm done or offer to make an apology. Additionally, if the intermediaries do not get an admission of responsibility of an accused party, or the parties cannot agree on this question, the chief may initiate some form of trial by ordeal (TBO), in which a party from whom the “truth” is desired is asked to take an oath before witnesses on dirt, water or some other substance, or ingest something that is claimed will make them sick if they are guilty. Some Zoes believe that trial by ordeal is not fair as an innocent person may be injured if a physically harmful TBO is imposed or agreed upon by an accused party. While trial by ordeal methods that inflict serious bodily harm have been outlawed by the government, they may still be practiced.
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