Sunday, October 22, 2017

Dana Zartner

Exceprted from: Dana Zartner, The Culture of Law: Understanding the Influence of Legal Tradition on Transitional Justice in Post-conflict Societies, 22 Indiana International & Comparative Law Review 297 (2012)


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      Since its independence from Britain in October 1962, Uganda has seen almost a quarter century of conflict. During this time period, Uganda has had six presidents and suffered severe political instability and turmoil. The current president, Yoweri Kaguta Museveni, came into power in 1986 after an armed struggle against the regime of the late General Tito Okello. Conflict and humanitarian disaster, however, increased dramatically in Uganda in the late 1990s and early 2000s as the Lord's Resistance Army (LRA), led by Joseph Kony, began committing widespread atrocities in its fight with the Ugandan government. While their goals are somewhat unclear, the LRA claims to seek to overthrow the Ugandan government in order to run the country along the framework of the Ten Commandments.

      The war between the Ugandan government and the LRA is considered “one of the worst humanitarian crises in the The conflict has resulted in an untold number of deaths, a displacement of an estimated eighty to ninety percent of the Acholi population in the northern part of the country, and the abduction of tens of thousands of children to serve as soldiers and slaves. People in the northern parts of Uganda - Acholi, Lango, and Teso - have lived in fear of the LRA and have also suffered at the hands of the government, whose movement of people into protective camps has resulted in more death and abuse.

      In 2005, the LRA was largely pushed out of northern Uganda, but continues to operate from neighboring Democratic Republic of Congo. The LRA and the Ugandan government made efforts to craft a peace agreement. However, after two and a half years, Kony ultimately refused to sign the Final Peace Agreement in April 2008. While LRA atrocities in Northern Uganda have diminished, the fighting continues.

      Also in 2005, at the referral of the Ugandan government, the International Criminal Court (ICC) issued indictments for five of the top leaders of the LRA, including Joseph Kony. In response to the ICC indictment, the LRA offered to negotiate a peace deal in exchange for the dismissal of the ICC charges. While the international response to this offer was one of outrage, the local response in Uganda was a bit different. A number of tribal elders and traditional leaders in Uganda believed that the ICC indictments interfered with the process of peace and that it would be better to find a solution internally. With the LRA largely out of Uganda, thousands of displaced persons and former soldiers will be returning to their communities, and questions about transitional justice will emerge with increasing frequency. The best mechanism of transitional justice for Uganda will consider the Ugandan legal tradition in forming a post-conflict plan.

      Western notions of law and justice are very different from the legal tradition that has developed on the African continent. Western-style trial and punishment “does not fit with traditional African The African legal tradition, rather, maintains a view of justice that “is aimed at ‘the healing of breaches, the redressing of imbalances, [and] the restoration of broken This legal tradition focuses on rehabilitation of both the victim and the perpetrator, as well as the reintegration of the perpetrator into the community in order to restore balance and harmony. While there are numerous differences among the African states, many states, including Uganda, share a heritage in the legal tradition of Africa, commonly described as a customary legal tradition. While each distinct country within the African continent has developed its own legal tradition, there are certain general commonalities among the countries of Africa that form part of the early development of the individual legal traditions.

      Those areas of Africa south of the Sahara were ruled for centuries by ancestral customary laws. The basic tenet of this customary tradition is that conceptions of law stem from respect for the traditions of one's ancestors and fear and respect of the supernatural. The binding nature of law in these societies comes from the pressure of the group, and not wanting to act against the group for fear of shame and banishment. The African customary tradition has historically been a social system of law centered in each community with communal methods for dispute resolution and the creation of new laws as needed by changing circumstances.

      Therefore, in terms of purpose of law, customary legal traditions are generally collectivist or communalist in nature. The whole community is involved in decisions such as the meting out of justice and punishment, and an impersonal decision by a court does not reflect communal preferences. Also in customary legal traditions, every person in the community is considered to be part of a larger group of living, deceased, and not-yet-born members. These are communal groups, where a crime committed by one individual against another is seen as a crime by one clan or community against another. Spirits of ancestors are very strong and are called on to assist in remedying wrongs and facilitating communal harmony. Therefore, a “justice” imposed by the state government or an international institution does not encompass the appropriate mechanisms for true resolution to a wrong.

      The legal institutions of the African legal tradition also center on social groupings such as tribes, castes, villages, and bloodlines. These social groupings are thought to endure through time; therefore, no laws can be considered which adversely affect either past or future generations. Because of this, certain Western-style legal mechanisms focused on individuals such as the adversarial trial system do not have corresponding provisions or protections in the African tradition. The group is the basic unit in the historical African legal tradition and the group is responsible for addressing wrongs and deciding remedies. Corresponding to this focus on the group, the law is ordered primarily based on individual obligations to the community rather than individual rights for oneself. This is contrary to the way law functions in the Western traditions. Legal obligations are not necessarily distinguished from communal and moral obligations.

      A final facet which must be considered when examining the states of Africa is the effect that colonialism had on the legal traditions of the states. Whether France, England, Belgium, Italy, Germany or others, the colonizing states brought their own legal cultures and institutions to Africa with them. The effects of colonialism on the historical legal traditions in Africa have varied. For example, the French in Africa followed a policy called “assimilation” which was centered on maintaining a single legal tradition within each state. Because French law was considered superior, if there was a conflict between more than one legal tradition in those areas that the French colonized, the French legal tradition was adopted and French law applied. Moreover, the French relied only on French judges to resolve legal disputes, even in rural areas. Therefore, even in those cases where local and traditional rules would apply, the French judges often distorted the law due to their misunderstandings of the native legal tradition. This resulted in a blending of the indigenous legal tradition with the French tradition, although in most cases the French tradition remained in place and the native tradition was largely lost.

      In English Africa, on the other hand, the English colonizers had very little interest in the local legal traditions. Following English tradition, English common law applied to the English colonizers themselves, local legal traditions remained in place for the indigenous populations, and the only instances in which the two intersected was when there was not a local law to cover a given situation. This policy of “indirect rule” allowed the original peoples to continue to apply their own legal traditions, according to their own customs. This left a legacy in former English colonies which resulted in greater continuity of the local legal traditions.

      However, whatever the tradition of the colonizer, the result for the legal traditions of Africa has been mixed. Often, the Western-style courts were set up only in the major cities, leaving much of the African population to continue developing their own legal cultures. In many instances, components of the common or civil law traditions would blend with the customary traditions, incorporating new rules, new language, or new ideas. This, of course, is part of any legal tradition. Legal culture adopts and changes as society develops. These changes can come from within, or be imposed or imported from the outside. In many instances though, such changes are superficial and limited to legal institutions. The true belief of the people as to the purpose of law and how justice should be done remains culturally distinct. When the colonial powers removed themselves from Africa, the legal order they imposed on their colonies often went with them.

      This colonial history has had a lasting effect on all the individual states created within Africa. Uganda's legal tradition is grounded in African customary law with some influences of the English Common law. In Uganda, under English colonial rule, traditional practices were officially prohibited in 1962, but this did not mean that traditional practices disappeared. Like many African states, what ultimately developed was a dual system; a traditional one largely utilized in rural areas and a hybrid one drawn from the legal system of the colonial power used in the major cities. The creation of a new legal system at independence and the outlawing of the traditional practices were also primarily institutional changes. They did not necessarily change the legal culture that existed in Uganda, a culture steeped in the customary traditions. Legal culture takes much longer to change - as does any major cultural shift - so attitudes about law did not necessarily change just because there was an official ban on traditional practices.

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      The legal tradition of Uganda and ideas about the purpose of law and the best mechanisms for achieving this purpose shape public perceptions about transitional justice. This is born out in the results of a survey of the Ugandan people on their attitudes about peace, justice, and social reconstruction. First, in response to the question of what their main priorities are in the aftermath of the conflict, the largest percentage of respondents (45%) listed health care as their number one priority. The second most common response (44%) was peace, with 72% of these respondents defining peace simply as an absence of violence with no mention of punishment or even justice. In fact only 3% of the respondents listed justice as their top priority. In order of importance, the remaining responses were as followes: livelihood concerns, including food (43%), agricultural land (37%), money and finances (35%), and education for the children These priorities in the aftermath of conflict suggest that the respondents were primarily concerned with basic human survival, and second, the ability to achieve the peace and well-being necessary to live. Focus on ideas of retribution and justice was not foremost on the minds of the respondents.

      The participants were then asked more detailed questions about transitional justice issues. First, they were asked how they would define justice. In response to this question, 41% of respondents simply said “being fair.” Only 29% of the respondents mentioned trials in conjunction with justice, and fewer than 8% equated justice and peace when asked to define justice. This, coupled with the responses to overall priorities described above, implies that the primary concern among respondents in the aftermath of crisis does not have anything to do with seeing perpetrators tried and imprisoned. The focus of the community is elsewhere - rebuilding, fairness, and restoring community harmony. These responses are all in line with the legal culture stemming from the Ugandan legal tradition. This view is seconded by the report issued post-survey, which states: “This may mean that many respondents do not strongly associate justice with current institutions such as the courts, but more with a general notion of

      Next, participants were asked what the best mechanism would be to achieve justice. Nearly half the respondents (49%) said local customs and rituals should be used. In addition, two-thirds of the respondents (67%) said that to achieve justice it would be necessary to chase away bad spirits to first establish peace. Again, these ideas derive directly from the Ugandan legal tradition. Respondents were also asked about accountability for the perpetrators, and over two-thirds stated that it was important to hold those responsible for committing human rights violations accountable. Accountability, however, was viewed in a specific way, with 65% of the respondents saying that apologizing to the community before being allowed to return was the first important step. Emphasis was also placed on truth-seeking (over 90% supported the establishment of a truth commission), amnesties, and pardons as a way to both provide victims with closure and provide peace. Eighty percent of the respondents, when given the choice of peace with amnesty or peace with trials, chose peace with amnesty. Fifty-four percent of respondents supported forgiveness, reconciliation, and reintegration of LRA members.

      In relation to traditional forms of justice, 49% of respondents said local customs would be a good way to address the LRA actions, and 57% of respondents said returning LRA members should participate in traditional ceremonies. Of the various forms of traditional ceremony, Mato Oput received the most support

      In terms of international transitional justice institutions like the ICC, responses were mixed. Overall the survey finds that “many respondents may see the ICC as a useful source of pressure on the LRA to participate in peace negotiations but do not want the court to hinder a Knowledge of the existence of the ICC had increased in 2007 to 60% of respondents (as compared to 27% in Only 29% of respondents, however, identified the ICC as the most appropriate mechanism for achieving justice.

      As these numbers show, there are significantly different ideas about the conceptions of peace and justice among the Ugandan respondents than one would likely see in a survey of respondents in the United States. Given this, it is important to consider what the best mechanism for rebuilding post-conflict societies is. By understanding the legal tradition of Uganda and cultural understandings of law - such as the preference for rituals banning spirits and local customs - the peace-building efforts will ultimately be more successful.

      As is evident from these survey responses, there is little support for Western-style trials and punishment of incarceration. Moreover, the primary concern of a majority of respondents doesn't even focus on “justice” in the way it is thought of in the United States. Rather, the focus is on peace, forgiveness, and rebuilding the community. These ideas reflect the communal nature of the Ugandan legal tradition.

      The preference for an alternative form of transitional justice, steeped in the culture of Uganda, has emerged to some extent in the post-conflict efforts. Both the Ugandan government and the LRA have conducted surveys of the people to determine what they think is the most appropriate post-conflict process. A preliminary pact on accountability and reconciliation signed by the government of Uganda and the LRA in 2007 states: “Traditional justice mechanisms, such as Culo Kwor, Mato Oput, Kayo Cuk, Ailuc, and Tonu ci Koka and others as practiced in the communities affected by the conflict, shall be promoted, with necessary modifications, as a central part of the framework for accountability and

      There are a number of traditional legal practices reflective of Ugandan legal culture that have been proposed as alternatives to Western-style courts. The most widely supported is the Mato Oput. Mato Oput means to drink “the bitter root” and is based on the Acholi understanding of life. There are no courts in Mato Oput, but rather the process is based on apology, remorse, and the acceptance of responsibility for one's actions. The whole community partakes of the bitter drink, which is believed to symbolize the bitterness of the past and a promise to never taste such bitterness in the future. The perpetrator and victim or the relatives of the victim drink together first, and then the whole community. This process is followed by a meal together. This is followed by forgiveness, which is considered essential. The Mato Oput process is a cleansing ritual for the victim in order to remove any vengeful spirits (which again, a majority of survey respondents think is This process cleanses the victim, the perpetrator, and the whole community. Mato Oput is representative of the main cultural and institutional characteristics of the Ugandan legal tradition, with its focus on the community, one's ancestors and spirits, and recreating harmony among all parties.

      Other traditional options include Moyo kum, which is a “cleansing the body” ritual. In this practice, during a meeting of the elders, men and women who have returned from captivity have their guilt washed away so they may live together in harmony with the community again. Another traditional practice is nyono tong gweno (“stepping on the This practice has been used for the return of over 12,000 LRA soldiers in order to reintegrate them into their communities and cleanse them of their deeds and any unwelcome spirits.

      Whichever of these traditional practices might be chosen, all have a greater chance for creating lasting peace and harmony than do international, or even state courts. The legal culture of Uganda, based on the customary legal tradition, does not focus on the individual punishment and retribution that trials and courts provide. The culturally-grounded beliefs about law focus rather on apology, forgiveness, and rebuilding communal harmony. Based on the responses given in the survey, this is exactly what the people of northern Uganda wish for as a mechanism of transitional justice.

      Successful transitional justice is not just about finding the right mechanism for redressing wrongs. It is also important to consider what the people involved truly desire. If faced with a similar situation, people in the United States would likely want justice in the form of trial and punishment in a court of law. This is due to the fact that the legal tradition of the United States is steeped in individual rights based on a constitution which provides for due process. But that is not the legal tradition of Uganda, which is reflected in the survey responses. “Justice” is not even what concerns most respondents (only 3% mention it as their top Peace is a top priority followed by rebuilding lives and livelihood. This is also reflective of the Ugandan legal tradition and is something that should be taken into account. Transitional justice may, in fact, not necessarily mean “justice” at all.

VI. Conclusion

      Rebuilding states like Uganda in the aftermath of a conflict often calls for outside assistance in the form of money, food, or personnel. War is devastating, and it is the global community's responsibility to assist those who are struggling to regain their lives in the aftermath of such crises. But needing outside assistance is not the same as needing outside ways of doing things. So often, the debate over transitional justice centers on whether international courts, regional courts, or state courts are most appropriate to administer justice. The reality is that not utilizing courts may be better.

      This is where understanding the legal tradition of a state can be of use. Legal tradition provides a window into the cultural and institutional histories and understandings of a society when it comes to the rule of law and appropriate standards of behavior. When looking at the responses of the Ugandan survey participants, the Ugandan legal culture is reflected. When providing assistance and support in the aftermath of the crisis, the existing culture should be respected. Only if the result is supported by and supportive of local cultural beliefs about the law can peace be achieved. This does not mean no one should be tried in a court of law. The Ugandan government has repeatedly indicated that it intends to have the leaders of massacres tried either at the ICC or in the Ugandan court system. This is supported by the survey respondents, 59% of which said “it is important to have trials for LRA But sentiments are different for the thousands of LRA members who were not in leadership positions.

      Understanding the legal traditions of individual societies has the potential to provide useful, practical information to those engaged in the process of peace-building in post-conflict societies, as well as rule-of-law building programs. Western conceptions of justice and law should not be imposed on post-conflict societies. By taking into account historical, cultural, institutional, and societal factors that exist in a given society and understanding how legal tradition shapes societal perceptions of issues such as justice, peace, and societal harmony, significantly more targeted and ultimately more successful assistance to societies emerging from conflict can be provided. The survey responses highlighted in this Article support the thesis that transitional justice does not mean the same thing for everyone. Therefore, those studying peace-building and seeking to assist with the process would be more helpful if these cultural factors were taken into account.


. Dr. Zartner serves as an Assistant Professor of Political Science at Tulane University and as an Adjunct Law Professor at Tulane University Law School. The author may be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it..

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