Conflicts and disputes are a natural and legitimate part of everyday life, present in all human relationships and societies. When people are voicing their opinions, asserting their interests — especially interest in land and other natural resources — and exercising their freedoms, often in conflict with others, positive change can result.
At times, however, disputes can escalate into conflicts involving widespread, deadly violence. Such high-level conflict impedes economic growth. Consider the fact that, at least as of 2011, no low-income, conflict-affected state had yet to achieve a Millennium Development Goal. For this reason, development efforts typically focus on managing and mitigating disputes and conflicts so as to prevent escalation into violence.
Key to conflict management is the legitimacy, fairness, effectiveness and accessibility of justice institutions. In countries across Africa, some of the most important institutions for resolving conflict are informal, i.e., they are not part of the state apparatus. Rather, they are the traditional, customary or religious institutions, often of tribal elders and chiefs, which predate and survived colonial rule and are deeply embedded in rural society. These institutions — 24,000 according to one source — remain ideally placed to help resolve one of the most common types of conflict in Africa: conflicts over land.
Effectively managing land disputes in Africa, so as to prevent their escalation into violent conflict, means investing in and supporting informal justice institutions at the grass-roots level.
Yet, these institutions are typically overlooked when governments and aid agencies consider the investment needed to prevent conflicts or restore the stability so critical to development. Instead, investment in the formal justice and security sectors are prioritized over the informal sector, particularly because some informal institutions’ practices are noninclusive and may run counter to the human rights of women, children, minorities and other vulnerable groups.
Nonetheless, this hesitation is not only shortsighted, it also is tragic, given the toll of land-related conflict. Many conflicts in Africa are not between states, but smaller-scale land conflicts between family members, neighbors, or newcomers and long-standing residents. At times, sons kill fathers. Neighbors kill neighbors. Widows may be forced off their land with nowhere to turn, perpetuating a cycle of poverty for their children. Without viable local institutions to help resolve land disputes, discord can simmer for years and eventually erupt.
This is part of the reality underlying World Bank statistics that fragile countries wracked by conflict account for 60 percent of the world’s undernourished people, and 77 percent of the world’s infant deaths.
Small-scale land disputes are not simply personal matters. When 65 percent of all Africans rely on some form of agriculture for their livelihoods, and their rights to land are generally insecure, land disputes can destabilize families, communities and entire nations. In such situations, improved land governance, including fair and timely resolution of land conflicts, is essential for sustainable development.
Africa’s informal justice sector is populated by institutions that often retain social legitimacy needed to resolve land conflicts. Almost every African country has such traditional institutions. Supporting them, building their capacity, encouraging inclusion of women and minorities, and in many cases linking them to the formal justice system can dramatically improve access to justice in rural areas and thereby reduce the likelihood that disputes will erupt into violence.
For example, Rwanda — which experienced mass genocide less than 20 years ago — has rebuilt its country based on an ambitious program of land tenure reform that recognized customary land rights as well as equal land rights for women and men. Its nationwide Land Tenure Regularization Program has registered nearly all individual land holdings.
As part of this reform process, Rwanda also revitalized its traditional justice institution, the Abunzi (“mediation committees”). Although the Abunzi had lost much legitimacy during the years of turmoil, the Rwandan government enacted a law recognizing the Abunzi and re-establishing their role in the local resolution of land disputes. Disputants must go to the Abunzi before they go to the formal courts — which have a huge backlog of cases, nearly half of which relate to land disputes. Some 30,000 Abunzi now mediate disputes across the country, improving access to justice for the rural populace.
The Abunzi face significant challenges, however. They lack information and training about land law and procedure as well as lack basic supplies and systems. In recognition of this need, several partners, including theInternational Rescue Committee, RCN Justice et Démocratie, Rwanda Initiative for Sustainable Development, and Search for Common Ground have launched initiatives to help build the capacity of the Abunzi.
Similarly, Kenya’s new constitution — approved in 2010 — recognizes “traditional dispute resolution mechanisms” (Article 159). The term “mechanism” most commonly refers to traditional elders in communities, typically organized into councils. Most of Kenya’s more than 40 ethnic groups have a group of elders who resolve local disputes, particularly land disputes.
Constitutional recognition of their role has been transformative. In one U.S. Agency for International Development pilot community, recognition brought a renewed sense of pride and authority, along with responsibility. Kalenjin and Maasai elders who gained access and training to the new constitution, as well space to reflect on its meaning for their communities, are incorporating aspects of both the informal and formal justice systems, creating a blended system that is more attuned to local realities and imbued with both local and national values. In essence, formal recognition of their role has inspired these elders to embrace other constitutional guarantees, including women’s equality. For the first time, communities are electing women to the councils of elders, and women’s land claims are being taken seriously.
Development in African countries is dynamic. Land tenure reform will continue to be a major undertaking as countries chart a course of sustainable and inclusive development. In many countries, the informal justice system, also constantly transforming, can be an indispensable ally in that journey.