Development Programmes must Engage Informal Justice Systems, UN Study Says
New York - Informal or traditional justice systems for resolving disputes are preferred by up to 80 percent of people in some countries and must be integrated into broader development initiatives aimed at guaranteeing human rights and access to justice for all, according to a UN study released today.
Informal justice systems “may be more accessible than formal mechanisms and may have the potential to provide quick, relatively inexpensive, and culturally relevant remedies,” with particular impact for women and children, the study, Informal Justice Systems: Charting a Course for Human Rights-Based Engagement, says.
The 400-page report, commissioned by the United Nations Development Programme (UNDP), UNICEF, and UN Women and produced by the Danish Institute for Human Rights, is the most comprehensive UN study on this complex area of justice to date. It draws conclusions based on research in Bangladesh, Ecuador, Malawi, Niger, Papua New Guinea, Uganda, and 12 other developing countries.
“Informal or customary justice systems are a reality of justice in most of the countries where UNDP works to improve lives and livelihoods and government capacities to serve,” UN Assistant Secretary-General and UNDP Assistant Administrator Olav Kjorven said. “The evidence in this report illustrates the direct bearing such systems can have on women and children’s legal empowerment, covering issues from customary marriage and divorce to custody, inheritance, and property rights.”
“There has been little research or literature on children and informal justice systems to date, and this study is important in beginning to document the issues around children’s engagement with informal justice systems,” Susan Bissell, UNICEF Assistant Director, Child Protection Section, said. “Reconciling the procedures followed by informal justice systems with children’s rights, and ensuring that international standards about children and justice are implemented, is a challenge that the report clearly documents.”
Both formal justice systems—government-supported laws, police, courts, and prisons—and informal or traditional systems can violate human rights, reinforce discrimination, and neglect principles of procedural fairness.
“The efficacy of working with informal justice systems requires that it be complemented by engagement with the formal justice system and with development programming that addresses the broader social, cultural, political, and economic context of informal justice systems,” the report says. Surveys in Somalia, it notes, found up to 80 percent of the population preferred arbitration by clan leaders to engagement with the formal justice system.
Where formal justice mechanisms are inoperative or inaccessible to ordinary people, informal justice systems “may be better placed to achieve the principles of impartiality, accountability, participation, and protection of substantive human rights,” the report says.
“The best access to justice and protection of human rights will be afforded when the different systems and mechanisms, formal and informal, are allowed (a) to exchange with and learn from one another, (b) to cooperate with one another, (c) to determine the best division of labour, guided by user preferences as well as state policy imperatives, and (d) to develop in order to meet new challenges.”
Discriminatory practices regarding marital and family relations, property ownership, and inheritance, or superstitious practices and punishments “are not simply expressions of justice standards, but are expressions of how societies are structured,” it says. “The best ways to change this may include broader development initiatives in education, livelihoods and public health. Broader development initiatives are also key to creating an environment where human rights can be respected and fulfilled.”
The study calls for special focus on vulnerable groups that are under-represented in traditional justice systems, such as women, children, and minorities.
“The crucial value in this report lies in its emphasis on what can be achieved in terms of improving access to justice and human rights through informal systems,” Kjorven said. “Changes should be evaluated over the long term, but training adjudicators, increasing the number of women in decisions-making posts, empowering paralegals and women’s groups to monitor and engage with customary leaders—all these efforts will continually improve individual and communal experiences of justice.”
“States have an obligation to make efforts to ensure that informal justice systems respect the rights of children, and the study found some examples of such efforts,” Bissell said. “In South Africa, the law reform commission carried out research on the compatibility of customary law with the rights of children before deciding the extent to which legislation would recognize customary law. In Bangladesh, legislation bans the application of corporal punishment by informal justice systems.”
To download the report Informal Justice Systems: Charting a Course for Human Rights-Based Engagement.
More information on UNDP’s work in Rule of Law:
Sarah Jackson-Han, +202 674 7442 and Sarah.Jackson-Han@undp.org