Research project TA/00/17 (Research action TA)
A three-year-policy-supportive research (2008-2010) will be carried out within the department of Non-Western Law about traditional justice in the context of legal and judicial development aid in post-conflict Africa.
The problem to be researched :
The role of external actors (states as well as governmental and non-governmental organisations) is crucial in post-conflict reconstruction in Sub-Sahara Africa. In post-conflict reconstruction efforts, justice is an important component, in two senses. On the one hand, some kind of transitional justice is needed to deal with past crimes and human rights violations (dealing with the past). On the other hand, the rule of law has to be restored (dealing with the future). In both these contexts, external actors are confronted with the fact that traditional law plays a very important role, within formal legal systems as well as outside them. Traditional law may hinder as well as facilitate the legal and judicial intervention of external actors.
The following questions are the focus of the research:
• What is the vision and policy of external actors with regard to traditional justice in the frame of international cooperation for transitional justice and programs for re-establishing the rule of law? What projects and programmes have been and are being carried out and what lessons can be learned from them?
• What are the objectives of traditional justice and what is their relation to the objectives of a democratic state and transitional justice?
• How can traditional law contribute to the construction of the democratic state in Africa and increase its legitimacy and efficiency?
• What is the role of traditional justice in transitional justice mechanisms and mechanism for dealing with the past?
• How can eventual conflict areas between African traditional law / justice and human rights (especially with regard to women and children rights) be overcome?
The gender dimension is at the forefront of this project. Women have a central role to play in the reconstruction of societies after conflict. Moreover, during armed conflicts, women are victimized in gender-specific ways, in particular through sexual violence. In addition, gender issues will be central in in this research because of the main challenges that women’s rights pose to customary law.
Methodology:
The methodology of the project consists of literature research, case studies, interviews and focus-group discussions.
During the first phase of the research a literature review will be carried out. Special attention will be paid to ‘grey literature’ produced by external actors (e.g.: programme descriptions, evaluations, internal analyses of donors). Based on this, a status questionis will be made.
Next, three case studies will be selected for field research, including interviews, focus-group discussions with key actors (national and international policy makers and international and non-governmental organizations, as well as beneficiaries of international projects in the legal and judicial sectors, i.e. the citizens). Representatives of women organizations and traditional female groups, as well as female victims of international crimes and human rights violations will be part of the reference group in the case studies. Through the consultation of key actors, the final users of the research’s results will be immediately involved in the analysis.
The findings will be communicated to the broad public at different moments, amongst which a forum in Cape Town and an international final seminary in Brussels. The involvement of the South-African partner will strongly contribute to the distribution of the research’s results in Africa, which constitutes another opportunity for involving the African civil society.
Output :
The objective of the research is twofold: on the one hand it will contribute to the scientific knowledge about the role and importance of traditional justice in rule of law reconstruction and transitional justice programmes. On the other hand, the final report will contribute to policy making in the field of law and justice development cooperation, including a mapping of existing policy and practice of external actors with regard to traditional justice, an overview of lessons learnt, alternative approaches and policy recommendations for future interventions (best practices, roadmap, caveats). The final report will be presented to the final users and it will be thoroughly discussed with them.
Big international donors like the World Bank and UNDP have observed the importance for international donors not to ignore traditional law and justice while implementing international programmes (see World Bank report ¨Customary Law and Policy Reform: Engaging with the Plurality of Justice Systems” (2005)). The output of the research can be used by all actors involved in programmes for rule of law reconstruction and transitional justice, as well as by national governments and other actors of African states, international institutions like OESO/DAC, the World Bank, the European Commission and the United Nations, as well as donors and specialised non-governmental organizations.
Finally, the improvement of the efficiency of external actor’s interventions when dealing with past and future in Sub-Sahara Africa will contribute to strengthening the rule of law, and thereby to sustainable peace and development in post-conflict societies.
Le droit traditionel dans le contexte de la coopération au développement dans le secteur du droit et de la justice dans les pays post-conflits en Afrique (AFTRALAW) : synthèse
Bruxelles : Politique scientifique fédérale, 2011 (SP2430)
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Omgaan met traditioneel recht in de context van rechts- en justititiële ontwikkelingssamenwerking (na conflict) in Afrika (AFTRALAW) : synthese
Brussel : Federaal Wetenschapsbeleid, 2011 (SP2431)
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Adressing Traditional Law in Post-Conflict Judicial and Legal Development Aid in Sub-Sahara Africa (AFTRALAW) : summary
Brussels : Federal Science Policy, 2011 (SP2432)
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