The True Value of Traditional Justice in Africa: Beyond Reducing Court Backlogs
As African countries increasingly recognize traditional justice mechanisms, the conversation often centers around their potential to alleviate the burden on formal courts. However, a closer examination reveals that the relevance of traditional justice extends far beyond this narrow focus.
In Kenya, Uganda, and Ethiopia, customary courts have been formally established or acknowledged as a means to diversify dispute resolution avenues and ease the caseload burden on formal courts. The Kenyan judiciary, for instance, reports that alternative justice action plans have helped reduce formal court backlogs. Similarly, in Ethiopia, respondents in an ongoing impact assessment of Oromia’s customary courts claim a noticeable decline in formal court caseloads.
However, empirical evidence does not support a direct causal link between formalizing customary courts and reducing caseloads in regular courts. In Uganda, enhanced staffing, automation of court processes, and the introduction of judicial circuits and alternative dispute resolution mechanisms have contributed to increased case disposal. In Kenya, there is a need for thorough documentation of alternative justice systems to better understand their impact on formal court caseloads.
Moreover, available data does not substantiate a significant reduction in formal court caseloads due to customary courts. In Ethiopia, the Oromia Supreme Court reported a modest 8.24% reduction in caseloads in 2022/23, which declined to 1.7% in 2023/24, despite customary courts handling a significant number of cases.
The relationship between customary and formal courts is complex and depends on the mandate granted to customary courts. In some jurisdictions, customary mechanisms are encouraged to refrain from handling serious offenses, which could increase the burden on formal courts. Conversely, in Rwanda, the Gacaca courts were tasked with resolving serious cases that would have otherwise overwhelmed the formal court system, sparing over 100,000 suspects from prolonged pre-trial detention.
Even when customary courts primarily address minor disputes and petty crimes, they can still alleviate the burden on formal courts. However, the extent of their impact depends on the relationship between the two systems. If formal courts actively refer cases to customary courts and encourage litigants to use them, the burden on the formal justice system could be alleviated.
Establishing customary courts does not create new avenues for justice but rather formalizes traditional mechanisms that have existed for centuries. In Ethiopia, customary institutions handle approximately three million cases annually, even without formal recognition. In Kenya, a 2017 survey revealed that 67% of Kenyans prefer customary justice over formal courts, suggesting that traditional systems are already resolving millions of disputes, potentially alleviating some pressure on regular courts.
The relevance of customary justice should be assessed by factors other than its potential to reduce backlogs in regular courts. A more principled justification for recognizing and formalizing customary courts is necessary. One reason is that the lack of recognition is a historical injustice, a result of Africa’s colonial legacy. Formalizing customary courts would also be in the public interest, as evidenced by the many cases they already handle without formal recognition and by public perception surveys.
Recognizing customary courts allows governments to improve their human rights compliance by regulating and supporting traditional justice processes. This can promote and protect cultural values while providing accessible and relevant mechanisms for dispute resolution. Recognition should not only be viewed as a strategy to alleviate formal court caseloads but as a crucial step towards integrating indigenous legal traditions into the broader legal framework.
By embracing traditional justice mechanisms, African countries can enrich their legal jurisprudence, align with the aspirations of their people, and offer a more holistic and culturally attuned approach to justice.
