Chapter 8: Customary justice

8 Customary justice

 

SIERRA LEONE
A country review of crime and criminal justice, 2008

 

African Human Security Initiative

Monograph No 160, May 2009

 

Introduction

Sierra Leone has a dual court system, the general law courts and customary law local courts. This duality is a legacy of colonial rule. Customary/traditional or the informal justice system occupies a very important place in Sierra Leone’s legal system as it provides the majority of Sierra Leoneans with a mechanism to access justice. Customary law is enshrined in section 170(2) of the Constitution of 1991, which states that the common law in Sierra Leone shall comprise, among other things, the rules of customary law. Section 170(3) then stipulates that the expression ‘customary law’ means the rules that by custom are applicable to particular communities of Sierra Leone.

Profile of customary justice in Sierra Leone

Customary law is largely unwritten and differs from place to place in Sierra Leone. For most citizens the formal justice system is remote and inaccessible. For this reason, the majority of them, especially those living in the populous provinces, turn to the customary laws, norms and practices that most Sierra Leoneans live by. Conflicts and disputes are usually settled by traditional methods through mechanisms such as secret societies and paramount chiefs, rather than being taken to the police or the courts. There is concern, however, that the traditional justice system sometimes employs justice dispensation methods and procedures that are discriminatory against groups such as women and juveniles. There is little interaction between the formal and informal justice systems.

Customary justice dispenses justice in line with the beliefs, customs and traditions of the inhabitants of the local area through the administration of customary law by the institution of local courts. These courts are responsible for adjudicating matters and resolving disputes at the chiefdom level in accordance with the provisions of the Local Courts Act of 1963.

The local government division of the Ministry of Internal Affairs and Local Government is responsible for governing the different agencies of customary justice in the country. The Chiefdom Police, established by the Chiefdom Police Act (Cap 284, Laws of Sierra Leone of 1960) is employed by Chiefdom Councils upon the recommendation of District Watch Committees comprising the District Commissioner, the Superior Police Officer commanding the police district and one representative from each chiefdom in the district, as appointed by the district’s Chiefdom Committee (sections 4, 5 and 6 of the Chiefdom Police Act).

The Chiefdom Police serve processes and summons from local courts and also keep law and order in the courts. Their other duties include:

• The detection of crime

• The apprehension of offenders

• The maintenance of law and order

• The enforcement of all lawful by-laws and orders made by the Chiefdom Council

• Assistance with the collection of chiefdom revenue

• Any other duties assigned by the District Officers or Superior Police Officers as required by the Chiefdom Committees.

Every chiefdom with a Chiefdom Police unit has a chiefdom lock-up. The lock-up falls under the supervision of the District Watch Committees.

Apart from the local courts and the Chiefdom Police, which are governed by the local division of the Ministry of Internal Affairs and Local Government, there is the Customary Law Division in the Law Officers Department to assist with the proper application of customary law in the administration of justice in the provinces. The division consists of Customary Law Officers assisted by paralegal staff who are ‘learned’ in customary law. These officers, who are also State Counsel, have a quasi-judicial capacity and are known as Local Court Supervisors (LCS) and Record Officers. They advise the local courts in matters of law and organisation, and educate and train local courts staff on the extent of the jurisdiction of the courts, how to distinguish civil from criminal matters, the possible conflict of interest when cases are tried, proper court procedures and court administration. LCSs also have powers of review pursuant to sections 36 to 39 of the Local Courts Act.

Local courts have limited jurisdiction. They have the responsibility of regulating native customary law institutions, such as marriage and divorce, and to adjudicate land/bush disputes and minor criminal cases, especially those where the maximum penalty is imprisonment for six months or a fine of £50 pounds sterling (section 13(c) of the Local Courts Act of 1963). The local courts are presided over by elders of the area who are proficient in customary law.

The local courts can be said to dispose of a significant volume of minor criminal cases. There are 288 such courts throughout the country, namely 28 in Bombali, 26 in Port Loko, 30 in Koinadugu, 17 in Kambia, 16 in Tonkolili, 27 in Bo, 28 in Moyamba, 18 in Pujehun, 26 in Bonthe, 28 in Kono, 18 in Kenema and 26 in Kambia.88 Lawyers do not have the right of audience before these courts.

The system of customary law and local courts has, however, not been effective in Sierra Leone since 1990, for the following reasons:

• Local courts are understaffed because of a neglect of duty by Chiefdom Committees and the Provincial Secretary who are responsible for electing and hiring staff
  
  

• Too few Customary Law Officers or LCSs
  
  

• A lack of state subsidies for local courts
  
  

• A lack of staff incentives to get the work done
  
  

• Too much political interference in the administration of customary justice

These constraints account for delays in the dispensation of customary justice and negatively impact on the quality of justice at the local level. In fact, in some areas visited by the Centre for Development and Security Analysis (CEDSA), local courts had simply ceased operating as the staff had gone on strike to protest against delays in the payment of their salaries. In the Eastern Province a huge backlog of land disputes and other civil cases have accumulated as the courts have been ineffective for the last three years.89 While local courts have been functioning continuously in the Southern Province, they have become solely reliant on the revenue generated from fines levied through court decisions.90 The interviews revealed that fines are non-standard across the chiefdoms and that, in general, they have become arbitrarily exorbitant. Consequently, many litigants in these areas have sought the transfer their cases to the Magistrates’ Court in Bo. However, those who lack the funds, have no recourse to formal justice. Even the right to appeal a local court decision as stipulated in the Local Courts Act is difficult to exercise.

Discussions with various Sierra Leoneans regarding customary justice led to the following findings:

• There is overall satisfaction with the dispensation of customary justice in different local areas
  
  

• Though most matters are first reported to family elders before proceeding to the local courts, when such matters eventually got to the courts, parties are mostly satisfied with the decisions
  
  

• The majority of the respondents in the Northern Province agreed that fines levied by local chiefs are within the reach of the poor and are based on the nature of the offence
  
  

• Judgements of the local courts are based on investigations and testimonies of witness
  
  

• A majority of the respondents agreed that there are barriers, such as transport costs, to accessing local courts
  
  

• Local courts in the Northern Province do not receive support from any organisation
  
  

• Marital problems are always settled amicably
  
  

• Matters involving land/bush disputes are not recorded during local court proceedings and are not subject to appeal.91

Notwithstanding the generally positive perceptions about the customary justice system, there are also negative perceptions about their operation in the country. Their judgements in respect of marital problems are regarded by many as being discriminatory. For instance, customary law provides for polygamous marriages, but there are no uniform procedures. The characteristics of such marriages are extra-judicial divorce, which can be obtained easily, the inferior status of women and the absence of a minimum age limit for marriage as the capacity to marry is determined by a person’s physical development. As a result, very young girls have been married to older, influential men such as chiefs. Furthermore, marriage under customary law does not confer absolute right to guardianship of children, nor does it confer any right to property on divorce. This type of discrimination infringes upon the principles of good justice and is in conflict with Article 16 of CEDAW, which specifically imposes an obligation to respect the right of free choice as far as choosing a spouse is concerned, and to entering into marriage only with free and full consent. It is also in conflict with Article 18 of the ACHPR, which enjoins states to take appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations.

The position of a woman who has not undergone any recognised form of marriage, but who has cohabited with a man until his death, is not protected under the customary law of inheritance. If there are children, they may not benefit from the estate of their father. However, according to the Report of the Sierra Leone National Consultation (2001:63), under section 29 of Chapter 45 of the Administration of Estates Act, they could petition, on equitable or moral grounds, to secure a share in the estate.

Interviews with some officials of the customary justice system in the Kenema District of Eastern Sierra Leone unearthed several findings. Kenema District comprises 16 chiefdoms and has 27 local courts. Some chiefdoms have one court, while others have two or more courts depending on size and population. The chairpersons of the courts are recommended by paramount chiefs subject to the approval of the Ministry of Local Government and Internal Affairs. The tenure of chairpersons is three years. Re-nomination by the Chiefdom Committee is permitted. At the time of writing, the mandate of all chairpersons had expired and they were waiting for re-nomination and appointment.

The problems besetting the customary justice system in the Kenema District, like in many other districts in the country, are many and varied and include the following: court chairmen and court members do not receive a regular salary, travelling allowances are not provided for court members who should travel to invite suspects and the accused to attend local court proceedings, members of the local courts have no entitlement to social security, and the lock-up facilities in most chiefdoms are in a deplorable state or non-existent. Local court excesses and reports of gross human rights abuses have come to light. For instance, the Regional Coordinator of Civil Society in the Eastern Region recounted how one lady was fined the sum of Le 600 000 for refusing to be intimate with her husband and for having a boyfriend.

Recommendations

The following recommendations, based on the above findings, are aimed at making the customary justice system more effective:

Legislative reforms

All legislation governing customary justice must meet a comprehensive review so as to cater for modern-day realities. For example, the Local Courts Act should be revised to expand the jurisdiction of the courts. This would ease the burden of the poor and people who detest the complexities and procedures of the general law courts, and prefer to settle their disputes within the ambit of their customs and traditions. Customary dispute settlement gives satisfaction to parties in disputes, whichever way a judgment goes, as is evident from the findings about the perceptions of people in relation to customary justice delivery in their local areas.

Institutional reforms

Reform of the institutions and agencies that together represent customary justice should address organisational, personnel and fiscal issues, as follows:

• Salaries should be paid regularly

• Customary law should be harmonised

• Capacity should be built and local court personnel should be trained

• The Chiefdom Police should be trained to carry out of orders and serve court processes effectively

• Transport should be provided for local courts supervisors to make them more effective

• Job incentives should be provided for the staff of local courts