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).
