Workshop: Use the best of both tradition and modernity

Use the best of both tradition and modernity by recognising judicial pluralism

One of the main criteria of legitimate governance is that societies feel they are well governed: constraints imposed on individuals in the name of the common good should refer to clear needs of the society; management modes should conform to the way the society thinks agreements should be reached and conflicts dealt with; leaders should be trustworthy; institutions and public services should be efficient, pertinent and implemented by competent civil servants dedicated to the public interest.

Law and the resolution of conflicts are an important part of governance. But as the Chinese philosopher Confucius wrote 25 centuries ago, “in a properly functioning society, the schoolhouse steps are worn by use and the courthouse steps are full of weeds”. African societies once provided an illustration of this ‘properly functioning society’ thanks to a traditional practice for arbitrating between conflicting interests and managing conflict that was based on customary systems of reconciliation instead of written law. With the arrival of colonisation and then the post-colonial State, most African societies retained the two judicial orders: one ‘customary’, the other ‘modern’, one oral, the other written. Far too often these systems work separately, are juxtaposed or compete with each other.

Instead of having one system triumph over the other, instead of exalting an idealised tradition or banishing it in the name of modernity, what needs to be done to create an African project of governance is to look for the best in both systems and draft principles for judicial pluralism.