Rule of Law Reform Without Cultural Imperialism? Reinforcing Customary Justice Through Collateral Review in Southern Sudan

Abstract

Rule of Law reform efforts in developing areas face daunting challenges: (1) the stigma of imperialism when Western-style institutions are imposed, (2) the unwillingness of local communities to embrace the reforms, and (3) a severe shortage of resources – human, physical, and financial.

At the same time, some of these developing and post-conflict societies have highly functional customary law institutions (in Africa, e.g., a tribal chief applying a customary law handed down by oral tradition). These systems enjoy public confidence and function on very limited budgets – often providing prompt and accessible dispute resolution in the community. Unfortunately these indigenous systems do not always adhere to minimum standards of justice and human rights. In response, Rule of Law reformers in such communities are now working to codify customary law, and/or create rights of appeal from the customary courts.

These efforts, however, threaten to deprive the indigenous communities of ownership of and control over their law. Rule of law reformers must learn the lessons of colonialism, lest they perpetrate a new imperialism. Instead, customary adjudication should be subject only to collateral review. Statutory courts should defer fully to customary law adjudicators on the principles and application of customary law, and review their decisions only for compliance with minimum standards of justice and human rights (ideally those recognized in the local constitution and international human rights instruments the country has ratified). Collateral review dignifies customary adjudication by respecting the customary courts' determinations of law, while providing a safety net for those whose fundamental rights may be violated in customary court process. This approach eschews the cultural imperialism inherent in so many rule of law reforms, relying on the more appropriate, and ultimately more effective, indigenous systems to build the rule of law in a way that the local populations will recognize, respect and, hopefully, embrace.