The dynamics of legal pluralism in Mozambique

State and Non-State Public Safety and Justice Provision
The dynamics of legal pluralism in Mozambique

International Conference
Indy Village, Maputo, April 28-30, 2010

CALL FOR PAPERS

Deadline for abstracts: March 5.
Deadline for papers: April 20.

Conference premise
Access to justice and security are of core concern to the majority of Mozambican citizens, and central topics of policy and media debates. The police and the judiciary have undergone comprehensive reform efforts as part of the democratic transition since the war ended in 1992. Through such efforts international development partners and the government have placed much emphasis on professionalising formal state institutions in accordance with the rule of law and human rights. However, despite some improvements, the police and the judiciary face many challenges in providing adequate justice and public safety, especially to the rural and urban poor. To many poor Mozambicans the official courts are viewed as hard to access, associated with high costs and as providing forms of justice that do not fair well with local socio-cultural norms and practices of justice. Support to paralegals and other kinds of civil society-based legal aid providers has gone some way in improving access to formal justice, but efforts have been unevenly distributed across the country. The police are often accused of being partisan, ineffective, indifferent to the security and public safety needs of the poor, corrupt and lacking the capacity to prevent crime. While efforts to establish forms of collaboration between local citizens and the police, for example through schemes such as community policing councils, have had some effect, lack of popular confidence in the police, and by extension the judiciary, prevails.

In many instances poor rural and urban citizens rather turn to non-state institutions or seek other informal mechanisms, including mob-justice, to have their social problems and crimes resolved. Justice is frequently dispensed by traditional authorities, community courts, village secretaries, community policing actors and/or traditional healers, who in one way or the other are recognised by the Mozambican state. While embraced by the 2004 constitutional recognition of legal pluralism, their roles in justice provision and policing nonetheless remain largely informal and legally detached from the formal system. During the past few years there has also been an increase in mob-justice especially in poor urban areas, exemplified by excessive punishments and lynching of criminals and suspects by ordinary citizens. These incidences can be understood as symptoms of Mozambique’s dysfunctional formal justice sector and of popular dissatisfaction with the state police. Equally relevant is to ask to what extent such incidents reflect the fragility of local non-state institutions and the lack of clear formal coordination between these and the formal state institutions.

While there seems to be a desire for better and more effective formal state policing and justice provision in Mozambique, much of what goes on in practice in this field is highly informal and involves a range of actors whose mandates and roles are not always clear from a legal perspective. The fact that many poor rural and urban citizens tend to use local solutions rather than attend the formal courts raises important questions about the current state of formal justice provision, state policing and performance of public safety. It also raises questions about different conceptions of justice – punitive, compensational and reconciliation – among the population and with regard to state and non-state systems. Furthermore, it is widely known that even formal law-enforcers, such as police officers and state administrative personnel, frequently engage in informal solutions: outside of official legal procedures they act as judges in civil as well as criminal cases, at times in close collaboration with non-state institutions and at times in competition with them. In fact, a variety of forms of articulation between state and non-state providers exist in practice, however with wide variety across the country. This de facto state of affairs points to the dynamics of legal pluralism ‘on the ground’, which however is only poorly reflected in current legislation.

Since the turn of the new Millennium official efforts have been made to embrace the dynamics of the legal pluralism that exists de facto in Mozambique. However, this is surrounded by ambiguity and unclear elements. As reflected in the 2004 Constitution and the Government’s Integrated Strategic Plan for the Justice Sector (PEI II, 2008-2012), non-state and semi-formal institutions are receiving increased attention from policy-makers and donors. Improved articulation between the informal and formal justice systems is a stated priority of the government and its development partners. While this marks a clear change from the almost exclusive focus on reforming the formal state institutions in the 1990s, it has not yet been followed up by a coherent legal framework for bringing this articulation to pass. Meanwhile, policy-making at the national level has been overtaken by developments on the ground. Many forms of articulation exist in practice, but these are poorly documented and understood at the national level. Within the area of local policing a similar situation prevails. Citizen involvement in policing through community policing councils is now widespread across the country. However, community policing takes a wide variety of forms and are differently embraced by the local state police and citizens alike due to lack of any law.

There is currently a void in accumulated knowledge of the de facto dynamics of legal pluralism in Mozambique and of the varied experiences resulting from reform-related programs on the ground, especially since the mid-1990s. There is an urgent need to engage various stakeholders in a debate on the current state of public safety and justice provisions in the country, including not only what reform has so far meant in practice, but also what the future challenges and prospects are for legal pluralism as a guiding reform principle.

Conference Objectives and themes
The Aquino de Bragança Social Studies Centre (CESAB) and the Danish Institute for International Studies (DIIS) co-organizes this International Conference in collaboration with DANIDA and Friedrich Ebert Stiftung. It will bring together researchers, practitioners and policy-makers to engage in an open debate of the current state of justice provision and public safety in Mozambique. The overall aim is to discuss the present dynamics of legal pluralism, from both a policy and a practice perspective, and to do so by approaching the justice and security sectors, i.e. the police and the judiciary, as interlinked. The conference will focus on the roles of the range of informal, non-state and semi-formal institutions that in one way or the other engage in policing, in solving conflicts, and in providing justice and how these relate to or interact with formal state institutions. It will also engage with conceptual issues around the theme of legal pluralism, conceptions of justice and state/non-state dynamics. Finally it will address issues of reform and legislation that embraces legal pluralism and how different programs and policies can and do engage with this.

Core questions
Six years have passed since the 2004 constitutional recognition of legal pluralism, but there has so far been no comprehensive debate on or accumulation of knowledge and experiences on what this recognition has meant for different kinds of legislation, programs and practices ‘on the ground’. What implications has it had for the articulation between different state and non-state providers? What is the situation in terms of potential new legislation supporting legal pluralism and what are the different pros, cons and interests involved? What are the challenges and advantages of legal pluralism? How can it support improved access to justice and security for the rural and urban poor? What does it imply for local providers, including police officers, court judges and community authorities etc.? How is legal pluralism actually practiced on the ground, in terms of how non-state providers operate and link up with state institutions?

The conference aims to address such questions from not alone a policy-maker perspective, but also from the perspective of the challenges that state and non-state providers of justice and public safety face ‘on the ground’.

Policy-makers, practitioners and donors/NGOs will participate to particularly engage in a discussion of the current status of police and justice sector reform efforts, with an emphasis on the results achieved between 1992 and 2010, the lessons learned and the challenges ahead. This will include not only a focus on policy developments and larger sector support programs through the government, but also the range of NGO initiatives related to access to justice, human rights and policing.

Themes for papers by researchers
Researchers from different disciplines are invited to present papers that address legal pluralism from an empirical and/or a conceptual perspective. Invited international key note speakers will address overall conceptual issues and bring forth empirical examples from outside of Mozambique. A number of researchers working in the SADC region and in Sub-Saharan Africa in general will present papers to invigorate the debate on Mozambique and to bring a comparative perspective to the conference.

Specifically the conference calls for papers that address the following themes, but paper abstracts that bridge the themes or bring new dimensions to the fore are also welcome:

THEME 1: LEGAL PLURALISM AS A BASIS FOR LEGISLATION AND REFORM
This theme will address how the concept of legal pluralism has been employed in Mozambique as a basis for legislation and reform of the justice sector, including the police, and what practical implications this has had so far. It will particularly address the following questions: What are the advantages of embracing legal pluralism and what are the pitfalls from an access to justice and improve public safety perspective? What implications has the recognition of legal pluralism in the constitution had for the state legal system in practice, and what has it meant for non-state providers for example in terms of how they operate and how they assert authority? How far should future legislation go in integrating non-state institutions into the formal state system? What aspects of non-state justice should be recognised and what aspects should not? What are the advantages and consequences of supporting new hybrid institutions, such as community courts, community policing and community mediators that can act as intermediaries between formal state institutions and citizens? The conference also invites papers that addresses legal pluralism from a more conceptual and theoretical perspective, but which do so in relation to the Mozambican situation.

THEME 2: EMPIRICAL CASE-STUDIES OF NON-STATE PROVIDERS
This theme will cover in-depth empirical case studies on the dynamics of legal pluralism in practice with a specific focus on non-state institutions. The aim is to bring together different insights of actual practices on the ground, including how the plural landscape differs from region to region in the countries. Papers can address one particular non-state institution – for example traditional leaders or chiefs, community courts, healers (curandeiros), religious leaders, community policing councils, community mediators, NGOs engaged in conflict resolution and justice issues etc. – but it can also focus on the relationship between different non-state providers and their relationship to the state in specific provinces or districts of Mozambique. The conference will particularly welcome papers that address the following questions: how do non-state providers operate in practice, i.e. the procedures they use and the forms of justice they dispense? How are non-state institutions organised in practice and what is their basis of authority? How are non-state providers linked to wider power relations and economic networks and to what extent do they constitute political actors? Who are the users of non-state institutions and why and to what extent do they use such institutions?

THEME 3: ARTICULATION BETWEEN STATE AND NON-STATE ACTORS
It is today widely known that various forms of collaboration, often combined with competition, exist between state and non-state institutions, despite the fact that there is no clear legal framework for such articulation. This theme calls for papers that address the practical forms of articulation that exist between different state and non-state providers in specific local contexts. This could for example be a focus on de facto forms of collaboration around case resolution such as referral mechanisms, informal forms of regulation or control of non-state providers by the local state institutions, competition over authority and clients, borrowings and/or mergers of the norms and procedures that state and non-state providers employ etc. We welcome papers that focus more broadly on these issues with regard to a range of crimes and social conflicts, but papers that address specific rights issues are also welcome, such as forms of articulation around land issues. Moreover we would like papers to consider the following questions: How can practical forms of collaboration with advantage help to draw up legislation on official articulation between state and non-state institutions? What could be the potential benefits and pitfalls of legislation that more profoundly formalises the articulation between state and non-state institutions, such as codification of customary law, inclusion of custom and community-based norms into state law, regulation of non-state institutions by the state, referral mechanisms etc.

THEME 4: DIFFERENT NOTIONS OF JUSTICE AND ORDER
It may be that non-state providers of justice and public safety play a significant role due to the lack of a well-functioning formal state system. Many people may prefer to take their problems and conflicts to non-state providers because state institutions are too far away, lack capacity or are seen as corrupt. However, non-state institutions may also be preferred because they tend to apply norms and procedures that are more in line with local socio-cultural beliefs and the economic situation people are in. Such local notions of justice and order may conflict with state legal norms and procedures, for example incarceration and punitive justice as opposed to compensational justice and reconciliation. Spiritual beliefs and occult practices may also influence why non-state institutions are preferred, as may fears of social ostracism if people turn away from local institutions. This theme calls for papers that address local notions of order and appropriate justice, as well as the socio-cultural or religious frameworks that inform such notions. This could for example include papers on sorcery and witchcraft, and the role played by traditional healers and chiefs in this domain, and it could also address religion-based non-state providers. Particularly we invite papers that discuss: what are the discrepancies between state legal and non-state justice procedures and outcomes seen from the perspective of local citizens’ needs and views? Are there ways of reconciling these differences or making them complementary as part of a wider reform of the justice system?

THEME 5: MOB-JUSTICE AND VIOLENCE
The increase in mob-justice especially in poor urban areas, calls for attention to the inadequacy of both state and non-state institutions to provide what local populations regard as sufficient justice and public safety provision. This theme invites papers that empirically engage with situations where citizens or groups of citizens take the ‘law into their own hands’ and thereby disregard or put into question established state and non-state institutions. Moreover the excessive kinds of punishments of criminal perpetrators or suspects that characterise mob-justice in Mozambique raise important questions about the relationship between violence, disorder and justice. Particularly the conference invites papers that address: to what extent does mob-justice reflect the fragility of local non-state institutions and the lack of clear formal coordination between these and the formal state institutions? How is mob-justice informed by wider issues of poverty and exclusion of certain groups of citizens from formal rights to justice and security? The papers could also link these questions to the above theme of different notions of justice and (dis)order.

THEME 6: HISTORICAL PERSPECTIVES ON JUSTICE AND PUBLIC SAFETY
This theme calls for papers that address legal pluralism and the provision of justice and public safety from an historical perspective. Mozambique has a long history of non-state or informal provision of justice and public safety, especially in areas where the majority of the poor live. This includes colonial indirect rule through traditional leaders or régulos, and the socialist period from 1975 until 1990 where popular justice and popular vigilantism implied a strong involvement of ordinary citizens in providing public safety and justice. In both periods the involvement of citizens and/or non-state authorities has also been used politically to boost or protect state power. How does this history affect the present? What are the continuities and discontinuities in terms of actual practices as well as of local perceptions of safety and justice? What can be drawn on from the past? How does the past inhibit desired developments in the present?

THEME 7: HUMAN RIGHTS
This theme calls for papers that address the human rights challenges that face legal pluralism in Mozambique (as is the case in other countries too). Papers could for example look into the extent to which non-state justice and public safety provision can be reconciled with international human rights standards, which today guide the reform process in Mozambique. For example: what convergences and divergences exist between human rights standards and those applied by non-state providers from structural, normative and procedural points of view? Papers could also address in which ways human rights standards can be applied to the provision of justice and public safety through non-state mechanisms. International human rights standards may often be associated with demands to satisfy “maximalist” human rights standards as a precondition to any kind of recognition or support. On the other hand, recognition of cultural rights or the need to satisfy basic needs for security and social order can justify other perspectives, so that the presence of non-state mechanisms may be seen as providing greater protection of human rights than their absence. This is often a core dilemma not only for states, but also for donors and NGOs supporting justice and security sector reform. The conference welcomes papers that address this theme either more generally, or in relation to specific rights realisation or issues such as land rights, women’s rights, family law, violence/physical integrity, fair trial etc.

Conference Outputs
The conference will aside from invigorating an open debate on justice and public safety that is informed by in-depth research, practices on the ground and policy experiences, produce 4 central outputs:

1. A clearer vision, amongst a range of stakeholders, of the principal obstacles and challenges facing the different formal, informal and semi-formal institutions directly involved in justice provision and the performance of public safety and what implications this has for Mozambican society at large. It should also help identify research gaps or areas for further study that can aid the legal reform process and donor supported programmes in the field.

2. A publication in the form of a book anthology that contains a collection of the papers presented at the conference, including empirical case studies, best practices and lessons learned in programming, and policy developments. It will be published in Portuguese and English, using a Mozambican publisher (possibly CFJJ (Centro de Formação Jurídica e Judiciária). The organisers will function as editors of the anthology and will write an introduction that brings together the main findings of the conference and introduces the overall theme.

3. Exchange of knowledge and experiences with other countries in the SADC region and in Sub-Saharan Africa in general, and networking for future collaboration with other institutions, national and international, operating in the fields of justice and public safety.

4. Conference results will inform the planning of and the development of a curriculum for an executive course on ‘Public Safety and Justice Provision’ to be delivered under the framework of the Southern African Defence and Security Management Network’s (SADSEM) executive courses. Participants will include people from the justice sector, the police and other relevant institutions engaged with public safety and justice provision.

Conference format
The three-day conference will be divided into two main parts, two conference days with a broad-based stakeholder participation and one closed workshop day for scholars presenting papers. The format for each of these parts will be as follows:

1. 1st and 2nd Day: Two panel sessions each morning (9:00-13:00) and group workshops in the afternoons (14:30 – 17:00). Panel sessions will follow selected themes and each will include 3-4 presentations from amongst invited key note speakers, invited paper presenters & one practitioner per session to speak about experiences on the ground. One panel session will be devoted specifically to papers on other African countries. Workshops (14:30 – 15:00) will take place during the afternoons and will serve to take up specific questions and challenges (as ‘Scenarios’) related to the themes of the panels during the morning sessions (the organisers will give each group the questions to address). The results of the workshops will be presented in plenary at the end of the day (15:30 – 17:00).

2. 3rd Day: Closed workshop for paper presenters as a preparation for the book publication. Those who have not already presented during the 1st and the 2nd day will present their papers. Keynote speakers and the conference organisers will serve as commentators on individual papers that will help make them suitable for a quality publication. Paper presenters from the 1st and 2nd days will take part in discussions.

Confirmed keynote speakers

Anne Griffiths, Professor of Anthropology of Law at the School of Law, University of Edinburgh. She is a distinguished, internationally recognised scholar who has worked extensively on the theme of legal pluralism. Her research focuses specifically on anthropology of law, comparative and family law, African law, gender, culture and rights. In pursuit of these interests Professor Griffiths has carried out fieldwork in Botswana, southern Africa in the 1980’s and more recently, in Scotland.

Bruce Baker, Professor of African Security and Director of African Studies Centre, Coventry University. He has published several articles and books on non-state policing and has a high international recognition within this field. His research covers African democratisation, governance, policing, security sector reform, popular justice and informal justice. His current research focus is informal and formal policing in post-conflict African states. He has conducted fieldwork in Zimbabwe, Mozambique, South Africa, Rwanda, Uganda, The Gambia, Sierra Leone, Cape Verde, Seychelles, Liberia and Southern Sudan.

There are 2-3 more keynote speakers invited to the conference, but these still have to be confirmed.

Conference organisers and convernors
Conference organisers: CESAB and DIIS in collaboration with DANIDA and FES.
Conference convenors: João Carlos Trindade (CESAB) and Helene Maria Kyed (DIIS).

Contact and submission of abstracts/papers
Abstracts should be submitted by March 5 2010 and be maximum 350 words. Replies for participation will fall on March 10. Full papers should be submitted no later than 20 April 2010 and be maximum 10.000 words.

Abstracts/papers should be submitted to: Helene Maria Kyed ([email protected]) and Amelia Souto ([email protected]). Papers can be submitted in either Portuguese or in English (translation will be provided during the conference and in the publication process).