ABSTRACT
The African post-colonial state apparatus is profoundly handicapped in its ability to provide access to the provision of justice. The vast majority of the rural population in African states experience the lack of a working judicial system on a daily basis. Communities, families, and individuals often suffer injustice at the hands of a myriad of private and public actors, affecting their rights to property and inheritance, access to land, services, and most basic forms of nurturing. The barriers for posing claims on the formal system of justice are multiple and insurmountable. Throughout entire regions, the delivery of formal justice has been ravaged by a conjunction of internal conflict, patrimonialism, discretionary treatment, and corruption. In others, the official structures are dysfunctional, unreachable, or deemed illegitimate by the local population. Both the concrete application of justice, and indeed its juridical conceptualization, vary profoundly across geographic areas, ethnic differences, social class, and status. Social capital and various forms of affiliation to social and familial networks determine to a large extent the degree of successful access to the formal justice system, as well as the possibilities of obtaining due process and favourable judgments. Courts of law, as well as legal and paralegal structures, are mostly located in central urban areas. Funding and technical assistance for infrastructure and personnel in the formal judiciary are scarce. In any case, extreme poverty, lack of information, and deficits of infrastructure and transportation make it impossible for most citizens to attain justice at the formal level. Facing the limits of the state system of justice, huge swathes of African
populations, in particular, rural dwellers, seek the resolution of conflicts in informal, ‘traditional’, or ‘customary’ mechanisms of justice. Yet, in the broad juridical reforms of the state and transformations of the judiciary implemented in Africa since the 1990s, usually under the aegis of the World Bank, the relationship between ‘traditional’ justice actors and public sector institutions has not been addressed in a manner and at a level which takes into account the central role that traditional justice mechanisms based on various forms of custom play in the current social and political life of the continent.1
