20 October 2010

NOTICE: Pimentel on legal pluralism in post-colonial Africa

David Pimentel's Legal pluralism in post-colonial Africa: linking statutory and customary adjudication in Mozambique is now available on SSRN. The abstract reads:

File:Flag of Mozambique.svgLegal pluralism is a contemporary reality and a challenge in most post-colonial African states, as they grapple with how to preserve the cultural heritage reflected in their customary law and institutions, while attempting to function as modern constitutional regimes. Few of them have found structural solutions for linkages between and mutual co-existence of multiple legal regimes within the same state.

The policy that will drive the establishment of proper linkages must be approached with an eye to what the purpose of preserving a legally pluralistic regime, distinguishing the motivations of many - colonists in the past, and political opportunists today - who have exploited pluralistic systems for their own self-interest. It is also necessary to recognize and preserve the virtues inherent in customary systems - systems historically undervalued as “primitive,” and still under attack by those who see them as threats to the protection of human rights.

There are no easy answers for how to correlate and link pluralistic adjudication in post-colonial African states, and Mozambique may present a particularly troublesome case. Although the precise mechanisms cannot be articulated with specificity, perhaps, the core underlying principles can. Those principles should respect traditional systems and values, affording them dignity as independent systems. To make them subservient to the state institutions, allowed to exist as long as they serve the state institutions on the state’s terms, would be nothing more than a repackaging and relabeling of tried-and-failed colonial approaches.

Instead, the pluralistic regime should operate on the principle of “maximizing” the role and impact of indigenous law, and giving equal dignity to the institutions that apply such law. This will require state courts to defer to community-based adjudication, even declining to exercise jurisdiction when the case can be appropriately resolved in the latter forum. It will grant concurrent jurisdiction wherever possible, supplementing it with consent jurisdiction for those who could not otherwise be subject to the authority of the traditional forum.

The most troubling aspects of traditional law, the oft-cited human rights violations, cannot be ignored. A mechanism can and must be developed for guarding against those, doing as little violence as possible to the autonomy and dignity of traditional fora. A system of collateral review - giving statutory courts limited jurisdiction to review a traditional forum’s decision for compliance with constitutional human rights standards - can serve that function. It is calculated to tamper with traditional dispute resolution systems as little as possible, and to respect the community forum as much as possible. Most importantly, it allows customary law to respond in its own way to the human rights requirements, not threatening customary law with restrictions, but strengthening customary law by fostering its legitimacy and relevance. Most importantly, it will allow the customary law, and its application, to remain solely the province of traditional authorities, where it can continue to function as a vital and highly adaptive foundation in rural society.

Operational solutions - for Mozambique as well as other pluralistic societies that face similar challenges - will require ongoing attention, but the central values of legal pluralism can be maintained as long as the implementation does not stray from these core principles: maximization of indigenous law, and equal dignity for the traditional forum.