Workshop:

Context / Issues

The spread of judicial models across the world is nothing new. It has of course been accelerated by globalisation, which brings to light the basic issue of dialogue between judicial cultures, but Africa has long been confronted with this problem as a result of its specific history of colonisation. Efforts undertaken to ‘modernise’ and unify legal systems have not led to the complete disappearance of other systems already in existence before the creation of independent States. Alongside State legal systems, which have often been imported1, many custom-based legal systems, in particular, are still in existence. These systems, made up of standards supported and implemented by authorities remain more or less vigorous depending on the country and field (for example in land and property rights, personal status or business matters).

The coexistence of legal systems leads to a highly complex pluralistic system which calls into question the legitimacy of imported judicial models. It gives rise to dynamic inter-standard phenomena within which legal systems are not set in stone, but in fact are in continual transformation as a result of changes in actors’ practices, social requirements and social values. The concrete practices of actors, through a process of hybridisation, create bridges between judicial orders or result in ‘standards mixes’ that render obsolete certain approaches opposing tradition and modernity in the field of law. The relationship between the various systems in existence does not in fact correspond to the dichotomy often depicted. Supposedly ideal customs are not up against a diabolical State system. Nor, on the other hand, is the centralising, civilising and homogenizing State system up against retrograde customs that are obstacles to national unity, development and modernity. On the contrary, customs are not frozen in time, but are living phenomena that arise as a result of a power struggle or changing social need. At the same time, the State judicial system cannot be summed up as a set of unchanging standards; it also evolves over time as the result of its application and interpretation in various periods or in special circumstances.

Legal regulation becomes a source of insecurity when it is unable to take into account these situations of legal pluralism. A look at land and property rights clearly demonstrates this risk of insecurity: insufficient regard for the diversity of values and standards and the actors who apply them often leads to inextricable conflicts in this field. Similarly, with regard to the protection of women’s and children’s rights, most States find it difficult to adopt and implement the reforms they have undertaken despite having signed and ratified international agreements.

Thus African legal systems must meet a two-fold challenge:

  • internally, the challenge is to preserve the unity of law while also making room for diverse legal cultures that take into account various standards and the authorities responsible for applying them; the goal is to build a new legal order that includes multiple systems, in order to encourage what has been called ‘coordinated pluralism’, ‘constructive interaction’, ‘inter-culturalism’, ‘organised pluralism’ or ‘cooperative pluralism’;

  • on the international level, the challenge is compatibility between—on the one hand—internal changes to States resulting from their experiences of pluralism and—on the other—an organisation in keeping with international standards, i.e., a viable combination of values (such as equality of the sexes, individual property rights, etc.), coordinating principles and means of implementation that can be modulated and adapted to suit national and local contexts.

An analysis of pluralism from the angle of cooperation and coordination of legal systems focuses more on the practical interaction between standards and the authorities that apply them, in fact between State law and customary law, between State justice and ‘customary justice’ (particularly social mediation). Such an analysis also attempts to identify the reciprocal acculturations that could improve the quality of the relationship between the two systems and enrich them both. This change in perspective allows us to place the same requirements on the different systems and to look for their compatibility, legitimacy and efficiency in the use of standards and their complementarity in the deliverance of justice. So what we need to ask ourselves is how can we create a harmonious pluralistic framework in which:

  • Citizens are guaranteed real, just and fair access to justice, regardless of the legal system to which they have recourse;

  • Legal, State and extra-State institutions and authorities fulfil the requirements necessary for their legitimacy and are subject to the Law;

  • Citizens are guaranteed legal and judicial security and Law that protects their rights regardless of the applicable legal system.

Questions for discussions and debate:

  • Do legal systems, both State and customary, guarantee real, just and fair access to justice, and how can the complementarity of multiple judges be highlighted, in order to strengthen this accessibility? Is it possible, for example, to use customary ‘justice systems’ to complete the insufficient offering of State justice, by improving the conditions under which customary ‘justice systems’ operate and by thereby creating the conditions needed for a qualitative equivalency between the legal systems?

  • How can the legitimacy of each institution or authority responsible for delivering justice be strengthened by removing the asperities that interfere with this legitimacy? How can we make sure that each legal order is subject to the Law, and is based on legal standards that respect joint, nationally-defined standards in conformity with international texts?

  • How can citizens be guaranteed equal legal and judicial security in all legal and judicial orders? How can we guarantee that decisions rendered by each judicial order are based on standards that can be foreseen and are not questioned? How can legal systems be combined in such a way that they cannot be intertwined and used to the detriment of citizens’ rights?