The concept of informal justice has long been a sticking point for justice reform practitioners. In many target countries informal justice systems have existed for decades, in some cases resolving 70-90 percent of disputes, and are inexorably tied to local customs and notions of justice. This is a double edged sword. Informal justice can be a basis for building locally-owned justice reform, but some customs may be contrary to international human rights standards. DANIDA (The Danish International Development Agency) has produced a new how-to report, Informal Justice Systems, which provides a framework for designing and implementing informal justice reform. The goal is to improve human rights by enabling access to justice as an integrated part of broader national justice reform. However, DANIDA demands that informal justice systems must respect the principles of human rights, and be willing to change practices that infringe upon them.
Informal justice systems are generally more accessible culturally, financially, and geographically than formal justice. While they reflect local norms and customs, they are susceptible to abuses of power, lack of accountability, unfair trials, inhumane punishments, and discrimination against women or minorities. There is no fixed definition of informal justice, but rather a broad spectrum based on authority, integration into formal justice, and dispute resolution. DANIDA identifies three basic types: the first, Traditional, are systems which have existed since pre-colonial times and are based on hereditary or religious authority. The second, Semi-Formal, are created or endorsed by the state, and are integrated into the formal justice system, even though they apply local customs and norms. Finally Alternative-Community types are created by the state or NGOs, and mix custom with international human rights and modern dispute resolution procedures.
Support for informal justice is necessarily a context-sensitive issue. DANIDA identifies several areas which must be investigated before moving forward with informal justice reform. The legal and socio-political context, existing links between formal and informal systems, and existing power relations are important political aspects to consider. An improper understanding can undermine the core goals the process reinforces exploitive power relations or compromises local ownership of justice. Openness to change and existing human rights concerns (especially relating to gender) must also be analyzed to discover if it is even possible to reform existing informal justice systems in a way that moves towards international human rights standards while maintaining local access and ownership. Finally, the actual operation must be analyzed to record procedural, enforcement, and accountability mechanisms in existing informal justice systems.
After a careful analysis of existing conditions has been completed, there are several possible entry points for informal justice support. Efforts could be made at the highest levels of the justice sector to develop a national strategy which clarifies and improves the links between informal and formal justice or implement legal reform. Alternatively, efforts could be directed at capacity development by conducting legal training, building knowledge bases, and improving the administrative capacity of the informal justice system. Finally, civil society could be empowered to demand accountability and respect for human rights from informal justice. An important thread throughout all of these entry points is the need to develop partnerships between various segments of the justice sector. For example, the formal sector can carry out training and supervision of the informal system, or partner with civil society and human rights organizations to support advocacy. However, the report is careful to note the need to set realistic objectives, especially on changing established norms and social barriers.
DANIDA has developed an important framework for conceiving and implementing reform in the informal justice system. While informal justice provides an established, locally-owned base for broad justice reform, detailed analysis must be conducted in order to avoid empowering inhumane systems. However, care must be taken to avoid being seen as imposing new norms on informal justice. To do so would be self-defeating, as locals will simply continue to use established procedures away from international interference. Finally, the report seems to make an unstated case for a multi-disciplinary approach to justice reform and SSR more broadly. Anthropological and sociological skills would be invaluable in conducting the analysis called for in the early phases of implementation, and this may reflect SSR’s shift to a multi-disciplinary practice.