Chapter 6: Customary justice

6 Customary justice

 

THE CRIMINAL JUSTICE SYSTEM IN ZAMBIA
Enhancing the Delivery of Security in Africa

 

African Human Security Initiative



Monograph No 159, April 2009

 

Conceptual framework of the customary criminal justice system


Zambia has a plural legal system consisting of general law based on English law, customary law, and a variety of bodies of rules and practices generated by semi-autonomous social groups like the church. Customary law consists of the customary laws of each of Zambia’s 73 ethnic groups. Since these laws have never been unified or codified in Zambia, the term ‘customary law’ does not refer to a single common system accepted in the whole country but to customary laws regulating the rights, liabilities and duties of the different ethnic groupings.


Customary law is informal and is geared to the needs of the people it serves. It is not written down and rarely requires reference to broad generalisations or abstractions or to carefully constructed analogies from the past. It is characterised mostly by its remarkable flexibility and pluralism. As indicated earlier, it differs from place to place and ethnic group to ethnic group, and even from time to time within a single area as leaders change. The customary justice system therefore does not emphasise rules for the delivery of justice, such as fairness, nor does it endeavour to emphasise the rule of law.


The courts of chiefs and headmen constitute the customary criminal justice system. These structures of dispute settlement predate the colonial period. Kakula140 studied traditional court structures among the Lozi living in the former Barotseland in Western Zambia and observed that in the colonial days the Barotse traditional judicial system had existed parallel to the formal judicial system.


The pre-colonial law in Zambia was essentially customary law having its source in the practices and customs of the people. During the colonial era the British employed a dual system of law whereby English law was applied in areas affected directly by their rule but customary/traditional law was used in areas under ‘indirect rule’, mainly for the native population under the supervision of the British. English law applied in all areas to people of English descent as well as to Africans who ‘opted out of’ customary law. The colonial regime recognised customary law, especially in the area of personal law, from the outset. Article 14 of the Royal Charter of Incorporation provided that in the administration of justice to the native people, careful regard was to be had of the customs and laws of the class, tribe or nation to which the parties to a dispute belonged. Customary law was retained in recognition of the fact that all societies have patterns of related systems of customs, norms, values, expectations, beliefs and assumptions that are rarely questioned but which guide the behaviour of individuals in that society.


The Barotse royal establishment described their elaborate governance system in which the chiefs exercised their powers through the Barotse national government. All courts formed part of this system. A percentage of the taxes went to the central administration and the rest to the Barotse Royal Establishment. The Litunga (the chief) had certain powers and was well respected. The laws that were in place were considered good and reasonably fair compared to statutory laws. Upon attainment of political independence from the British, the customary system was destroyed through the 1965 Act of Local Government and the powers of the chiefs were removed by the Local Courts Act that came into effect on 21 April 1966.


In essence the colonial period resulted in the gradual transformation in the character of customary criminal law, for example banning the execution of witches, a practice that is repugnant to natural justice and good conscience.141


The 1929 Native Order-in-Council which was established to administer the local customs and traditions of the indigenous people also recognised the chiefs’ courts. These were called the native courts and were presided over by chiefs and paramount chiefs. There was also a territorial jurisdiction which similarly distinguished between paramount and junior chiefs. Whereas a paramount chief could deal with cases in the whole of his territory, a junior chief or headman could only deal with disputes in his sub-territory. All serious cases were referred to paramount chiefs.

Native appeal courts which could hear appeals from the lower courts within the chiefdom were set up in 1964. Paramount chiefs’ courts sat as native appeal courts, and where there was no paramount chief, three or four chiefs sitting together constituted an appeal court. Native courts exercised jurisdiction in civil and criminal matters and the ordinances, provided that the native courts were constituted according to native law and custom of the area in which the court had jurisdiction.142


In 1964, when Zambia attained its independence, there was also a change to the legal system of the country. The independence constitution introduced the concept of the independence of the judiciary. In 1966 the native courts were reconstituted as local courts under the Local Courts Act. These were supposed to be the lowest courts in the judicial structure, administering customary law with a national character in terms of jurisdiction, as opposed to the chiefdom territorial jurisdiction of the native courts. However, the chiefs’ courts were not integrated into the new dispensation and still operate parallel to the centrally administered judicial system to the present day. The chiefs’ courts have a common jurisdiction with the local courts in customary law matters. Kane and his co-authors143 confirm this, stating that informal customary law tribunals continued to operate at village and community levels in several forms, including councils of elders, clan or family tribunals and village associations, in the post-independence government.


Nevertheless, the traditional courts are not recognised as part of the judiciary or by statute and even their existence is not recognised. A further problem with matters as they currently stand is that officers serving in the local courts do not have sufficient knowledge of customary law as they are not the custodians of customs and traditions like the chiefs and their headmen. Consequently scholars argue that there is a people’s customary law and a state customary law, or an official customary law and a living customary law. The difference between state or official law and people’s or living customary law is that the former denotes a static form of customary law while the later denotes a dynamic and flexible form.


Customary law has its roots in the culture and traditions of the people; it therefore grows and evolves with the people.144 It is derived from the customs and practices of a people and is based on their beliefs and values as an ethnic group or society. It has provisions for punishment and remedies for transgressions. The customary justice system also distinguishes between crimes and civil wrongs. There is ample evidence to show that such a distinction exists in which offences against the person - for instance homicide, assault, sexual offences, and offences against property, such as theft - are all regarded as criminal offences. Generally, crimes are wrongdoings that contravene the basic beliefs of the community, while civil wrongs are directed against the individual. It should also be noted that the basis for distinction differs from one community to another, because each ethnic grouping has its own set of customary beliefs and laws.

Customary law and the constitution of Zambia


Article 23(4)(c and d) of the Constitution of Zambia recognises the application of customary laws in certain matters impacting on human rights, especially those of women and children. Customary law and practice place women in a subordinate position to men with respect to property, inheritance and marriage, which contradicts various constitutional and legislative provisions. Under the traditional customs prevalent in most ethnic groups, all rights to inherit property are vested in the family of the deceased husband. However, the aim of the Intestate Succession Act, 1989 (Act 5 of 1989) is to ensure that women get a share of the joint estate. In terms of the Act the children of the deceased man equally share 50 per cent, the widow receives 20 per cent, the parents receive 20 per cent and other relatives receive 10 per cent.145 A 1996 amendment to the Act provides that the widow’s 20 per cent share may be divided equally with any other woman who can prove a marital relationship with the deceased man, thus granting inheritance rights to other wives, mistresses and concubines.


In practice, ‘property-grabbing’ by the relatives of the deceased man continues to be widespread, particularly in the jurisdictional areas of local courts. These courts often use the Local Courts Act to override the provisions of the Interstate Succession Act. The fines mandated by the latter for property-grabbing are extraordinarily low, and a result many widows receive little or nothing from the estate.146


The basis of such practices stems from the distinct culture and customs of the different ethnic groupings. Most ethnic groups follow a matrilineal line of descent. However, irrespective of whether the system is patrilineal or matrilineal, male domination (patriarchy) is common among all ethnic groups and there is a clear preference for male heirs. Moreover, government policy has helped to reinforce patriarchy through the recognition of men as the heads of families and custodians of children, which has actually removed the rights that women from matrilineal groups enjoyed with respect to rights over children and land.


In Zambia some of the factors contributing to the spread of HIV/AIDS are embedded in customary laws and practices, too, especially in relation to divorce, adultery, child marriages and defilement. According to the 1998 Sexual Behaviour Survey of the Central Statistical Office, some of these customary practices entail sexual cleansing of widows and widowers, remarrying irrespective of the cause of the spouse’s death, and requiring that women be submissive to their spouses.


The Zambian Constitution entrenches the equality principle in article 11 of the opening statement of Part III. Despite this, gender studies and empirical evidence in Zambia still show that in most cases the violations of the rights of women are not regarded as a human rights issue.147 This view is supported by the fact that when the Constitution was reviewed in 1996, the Bill of Rights was not expanded to include the rights of women and children.

Customary law and legal protection of human rights


With respect to the application of customary law, the question is not whether it is possible or desirable to replace it by statutory or state law in the abstract. Rather, it is the relationship between the application of customary law and the legal protection of human rights that is at issue. On one level, since customary law will probably be perceived by local populations as more culturally authentic, accessible and useful than the externally imposed (colonial) legal systems, its forcible displacement may itself constitute a violation of human rights. The statutory legal system infrastructure is incapable of properly serving urban populations, let alone the rural populations, to whom access and costs are particularly problematic. Neither are they conceived or implemented in ways that necessarily offer better protection of human rights than customary law. However, the cultural authenticity or practical expedience provided by customary law should never be upheld at the expense of effective protection of human rights, especially those of women, who suffer most under various customary law systems. The challenge is therefore to regulate the content and application of customary law so that it offers better protection and promotion of human rights in local communities.

 

The position of the customary criminal justice system in Zambia


This study found that the traditional courts administered by the chiefs are functioning well and that they constitute viable justice delivery systems. This is despite the fact that these courts have no constitutional recognition as part of the judiciary, which means that they receive no backing from state machinery in enforcing their judgments. The result is that the customary criminal justice system is important although neither the system as such nor its workings and effects are recognised by the state. In fact, the system is neglected and ignored and generally viewed in fairly negative terms. It is seen not only as archaic and ‘backward’, but also as incompatible with modern-day economic, social and civil rights and notions of ‘justice’ attributed to English law.


Existence


The customary criminal justice system exists despite having no physical infrastructure in any of the three chiefdoms visited during the course of this research. Most proceedings are held under trees and proceed informally. They are easy to access because courts are usually set up in central rural locations. In the case of Western Province, respondents said that the customary criminal justice system had historically been quite elaborate and systematic but that the onset of independence led to its demise. A number of participants felt that the new independent government had tried to destroy existing structures of local administration, among others by destroying the role of chiefs who were the custodians of the customary justice system. The system is ignored by the political governance structures and like the position of chiefs, receives little recognition.


Respondents felt that in the absence of good laws to protect the customary criminal justice system, it would be difficult to restore the system to its ‘former prestigious position’. In addition, there is a lack of political will to have the system popularised. It is argued that the British revision of indigenous judicial systems in Africa was fundamentally hypocritical, because on the one hand they sought to preserve customs by recognising customary institutions but on the other hand they served as a vehicle for moulding the native system into links consonant with modern ideas and higher standards. Chirayat et al148 contend that failure to recognise the customary criminal justice system is in itself discriminatory or exclusionary and inequitable, for there are many good reasons why people choose to use this system, which should be considered and understood. In fact, ignoring or trying to eliminate the use of customary law in the criminal justice system and focussing purely on the formal system assume that the latter system is accessible to all, while this is not the case. The Law Development Commission’s Report on the Local Courts System149 acknowledged that the traditional court system is still viable in most parts of the country and is used by both urban and rural residents.


In all the three chiefdoms visited during this review, customary criminal justice is considered part of the governance system. Participants stated that even when there is a local court in an area, people preferred to take their cases to customary courts because of the following factors:

  • The customary court is more democratic in that all parties have a hearing without much bias, except with regard to gender and age

  • People are more familiar with the traditional system, although not written, than the statutory system

  • The customary criminal justice system is part of the traditional dispute resolution system and according to the members of the public interviewed, as such it is much more elaborate, efficient and effective because it takes a short time in terms of administration of justice, there are fewer adjournments, and the procedure is known to the people. Similarly, it is conducted within a familiar environment and so less intimidating to the parties. In comparison the local court system is regarded as insensitive to the needs and interests of the accused, while the aggrieved families felt that the local courts were prone to corruption and other abuses in murder cases

  • The administrators in the local courts are unfamiliar with the customary justice system and just doing their work. They are not the custodians of the customary law and are therefore not well equipped to deal with it

  • There is no equitable access to justice in the local courts for the poor, so they prefer the traditional system

  • It is based on the people’s traditions and customs and therefore closer to them

  • Women, too, use the traditional customary system because they are familiar with the procedure as opposed to local courts

  • The local courts use the processes and procedures of the formal law system since they are part of the formal justice system

Nature


All participants demonstrated a passion for the customary criminal justice system, arguing that it is more humane. In Western Province participants indicated that as a province, communities benefited more from the traditional system than the statutory system which in their view promoted the values of the British from which the statutory law originated. They cited the following benefits of the customary criminal justice system in murder cases:

  • In Chief Choongo’s and Mwanza’s areas the accused carries the costs of burying the deceased, feeding the mourners, etc

  • The bereaved family is compensated for the loss of their family member. In the formal system there is no compensation to the family

  • A murder case is considered to be a matter between the two families, in contrast to the formal system in which the accused is tried alone and against the state. The case is thus removed from the family to the state

  • Once compensation has taken place the matter is finalised, and the process concentrates on reconciliation and restoration in the relationship between the two families. Harmony is encouraged

However, the absence of trained lawyers in the local courts could result in questionable and unstandardised norms of justice. Although this could be justified on the grounds that there are very few formal rules and therefore there is no need for lawyers in customary courts, it is a disadvantage to those litigants who would like to use lawyers. The procedures in these courts are so dependent on the subjective views of the local court justice that he has a wide latitude for the dispensation of (dubious) justice. This worsened by the fact that the justices in the local courts receive no formal training.150

The friction between the customary criminal justice system and the local courts


Local courts were established just after independence under the Local Courts Act of 1966. According to the Zambia Law Development Commission local courts were established with the intention of replacing the traditional courts, which they have failed to do. The introduction of the local courts was also intended to increase the standing of the customary courts to a national level so as to achieve a uniform administration of customary law across the country. The local courts are supposed to use customary law and because they are part of the formal justice system, they are not allowed to deal with criminal cases. According to chapter 29, section 12 of the Local Courts Act, customary law should be implemented in the local courts, unless it is against the written law. Despite this pronouncement it is not clear which customary laws should be implemented in practice. The local courts were also intended to separate chiefs from the administration of justice. This objective failed to take into consideration that chiefs are the custodians of the customary criminal justice system and so could have been the most instrumental in the development of the local courts as they are closest to the people.151


Participants from Chief Mwanza’s area stated that statutory law was used to administer local community issues in the area. In the view of the participants the result was that a system which was supposed to be pro-people was hostile and less consultative. They also argued that the Intestate Succession Act had eroded the Tonga culture. Chief Choongo was equally concerned about the application of the Intestate Succession Act, which is considered to result in he called ‘property-grabbing from the clan’. Once a person died, customary practice was not applied but instead, the property of the deceased person, as well as the property to which he had a custodial right but which actually belonged to his whole clan and relatives, was divided according to the provisions of the Act. This has on occasion resulted in people being imprisoned over property belonging to the clan. The headmen all argued that this happened because the local courts in the area either did not know the customary justice practices at all or if they did, preferred to apply statutory law even in the local courts.


The study found that the Intestate Succession Act is misinterpreted and misapplied in many areas of the country, causing fragmentation and conflict between the families and especially between the women and children. This situation will only be resolved if paralegals and the local court justices receive training on the Intestate Succession Act so that they could relay correct information to the communities. In some cases, the administration of justice according to customary practices was considered to suffer from abuse because it was not written down. This made it possible for individuals to deliberately misinterpret the law to suit their individual interests, or for rich persons to bribe those who preside over issues at the expense of justice. Obviously poor people - and also women in general - suffered most from the abuse of the local courts system. They could not ably present their cases or even receive a chance to be heard. One woman in Mwanza said that ‘local courts overrule us on almost everything. Even when we know how the case should go, their word carries the day.’


Non-codification


Part of the problem identified with regard to the customary criminal justice system is that it is not in a written form. The problem of interpretation is complicated by the fact that it differs from tribe to tribe. Most participants agreed that a systematic documentation of the customary laws would solve many of the problems.


The human rights issue


The WLSA study on the changing family in Zambia shows that there is an indigenous concept of human rights under customary law which is broader than the legal or universal concept. While international human rights law focuses on individual rights, customary law focuses on the group rights of the extended family. In sexual offences, for instance, the offence is considered to have been committed against the family as opposed to the individual. This is one of the reasons why the customary criminal justice system is not recognised by the formal system.

Procedure for handling customary criminal justice


Not only is the system itself not in written form, but neither is the procedure for handling customary criminal justice documented. This was experienced first-hand in all the three chiefdoms visited. Among the Tongas in the areas of Chief Mwanza and Chief Choongo, the people involved in a customary case are the family members, headmen/headwomen and the chief.


There is no standard procedure that is followed in all areas, or even with respect to different cases within one area. Usually the family of the aggrieved will report the case to the headman/headwoman who then asks the accused to give their version. It was not clear whether the family of the accused or the accused himself or herself had to respond. The proceedings are held at the court of the headman.


Generally, clan members from the two families that are involved choose their clan leaders and sometimes also other members who then form a ‘team’ to mediate the process. The accused is represented by his or her clan and is not physically present, the idea being that if the accused is present the process would be more subjective and increase the emotional tension of the members of the aggrieved family. Depending on the seriousness and level of tension, a case can take days, weeks or months and occasionally even years to settle, though this is rare. If the parties are not satisfied with the settlement of the case at clan level, the matter can be taken to the next level (the headmen) and thereafter the chief. Dissatisfaction usually relates to the compensation decided upon, with the aggrieved wanting more or the accused feeling that they have been overcharged. Once both groups are satisfied with the compensation, the accused family settles it and the case is concluded. Nothing is written down and the whole process is verbal. In one case where a woman was killed, the case was settled between the two families without involving any village leaders such as headmen. Only if a case is not settled at this level is it heard at the formal court level. It is once it reaches this level that people fear that it will become subject to abuse and corruption.


From the discussions of the process it was evident that the fact that it is not documented makes it open to abuse and misuse. Focus group participants in Chief Mwanza’s area also said that because the proceedings are usually conducted by the males and because all involved parties know each other, this can lead to intimidation of the accused to the extent of him or her being beaten before the case is heard. Another contributory factor to abuse is that the customary system seems at times to be intertwined with the statutory system but at others seems to operate independently of the statutory system. It means that people can use the justice mechanism to their own advantage, as the case of Chief Mushota’s cow described in box 9 illustrates.

 

Strengths


The study sought to determine the strengths of the customary criminal justice system and found it to have the following features:

  • Flexibility

  • Relevance:It evolves as communities evolve and therefore remains relevant to the changing circumstances in communities. The customary law can thus be more modern than the written law, particularly if one considers that there are obsolete and archaic laws on the statute book

  • Sense of ownership: It provides the community with a sense of ownership because of its participatory nature. The families of both the accused and the victim participate in the proceedings. They know what to expect and how to conduct themselves – the rules and procedures are known – since it is based on the law they know, and therefore the proceedings are understood by all

  • Simplicity and familiarity: The language used is the vernacular of the parties concerned as opposed to English, which is not understood by all local people

  • The system is based on mediation and favours decisions that are restorative. This is appropriate to the needs of the poor and tends to rebuild community relations as opposed to the formal system which has a punitive base

  • Generally, the case is only finalised if all parties are satisfied. Therefore people can forgive each other and live together once the proceedings come to an end

  • The system is accessible, inexpensive and speedy. There is no backlog of cases and cases are quickly and expeditiously disposed of
    Geographical proximity: Involved parties do not have to travel great distances to access the system

Disadvantages


Participants noted that one of the biggest disadvantages of the customary criminal justice was enforcement of decisions, particularly as the decisions are oral and not recorded. For example, if a person is instructed to pay compensation within, say, ten days, there is little the headmen can do if he does not do so. Also, if a headman in charge of interrogating the accused is hostile, there is nobody who has the power to intervene. The system is also not resourced. Other weaknesses are as follows:

  • The informality of the criminal justice system

  • The ill-defined legal status: The administrators of justice can unduly influence and even exploit the system, as there are no protective instruments or actions as provided for in the formal system

  • Non-codification of the customary law

  • Proceedings and decisions are not recorded, making it difficult to standardise the quality of justice dispensed and monitor the substance of decisions made or observe inconsistencies

  • Gender-based discrimination occurs because the system is based on traditional practices and norms which do not favour women, especially where a crime is committed by a male. According to WLSA reports, forced early marriages are considered normal and the rights of individuals like women and children are ignored in favour of tradition. So, too, defilement is not always treated as a crime in the customary justice system. A 12-year-old girl may be forced into an early marriage to a polygamist as the fifth wife, a situation that will be accepted by the system.152 Such a case underscores the abuses that are inherent in the system because it is the men who marry and it is the men who administer the criminal justice system. Because local practices are valued as are the people’s opinions of what is customary in specific situations, such a case, if taken to the chief’s court, will not be heard because such a practice is considered acceptable.

  • Although customary law does recognise some human rights, it does not recognise international treaties, protocols and conventions. It promotes group as opposed to individual rights.

Conclusions/Recommendations

  • Customary law is based on oral traditions and as such is subject to misinterpretations. It is therefore recommended that the system be documented

  • The customary criminal justice system should be restored by restoring the position of chiefs. This should be done through government pronouncements and commitments. Part of such a process of restoration would require raising awareness and sensitisation on the importance of the customary justice system. Furthermore, records must be kept of customary tribunals and officials should receive training in basic human rights principles

  • A reinstatement of customary laws and usage would provide a basis for increasing the pool of knowledge about these laws, providing a more informal basis from which a consideration of the existing status of customary law can commence

  • The study has established that there is no interaction between the customary criminal justice system and the formal system. There seems to be no exchange of information on either substantive or procedural matters. The interaction between the two systems should be encouraged

  • The jurisdiction of customary courts, based on geographical as opposed to ethnic considerations, should be clarified

  • The ‘repugnancy clause’ from the colonial era should be eliminated and replaced it with the requirement that all court decisions be made in the spirit of the Bill of Rights and Constitution of the country