Annex 1 - case study matrix 5
Results (outputs and outcomes)
Emerging issues/ lessons
• The training programmes have been carried out in collaboration with CBOs or police located within the communities, who are then able to make informal follow-ups.
The integration of alternative justice mechanisms into the constitution is a formal recognition of their role in dispute resolution within communities. Overall, the TA provide faster, more accessible justice, however, their inherent weaknesses must be addressed or else the TAs will continue to reinforce and practice customs that do not reflect international human rights standards and norms to the detriment of vulnerable groups. Some of the issues raised include:
• TAs transfer their acquired knowledge to their Group Village Headmen and their village headmen through post-appointment briefings where rules of conduct are laid down. • Women have been integrated into the system, for example, in Mulanje where 3 of the 6 chiefs are women at TA level, and in some TAs women’s councils are designated to deal with what are considered delicate cases that require female intimacy (such as rape and domestic violence). • Improved record keeping through the Primary Justice Programme that distributes forms for recording decisions and registering cases. • Mediation trainers were trained in three districts. The trainers went on to train 3 Village Mediators in each village or village cluster (a total of 75 Village Mediators in each of the 6 involved TAs). The Village Mediators in the three districts had, as of the beginning of 2010, facilitated the resolution of over 800 disputes in the 6 TAs. In some places the caseload of the Group Village Head (GVH) has been reduced from 6 to 1 case per month. • Access to information on land matters has been enhanced through a number of articles and research papers on topics relevant to land, as acknowledged in a 1999 Government study. However, less research and data seem to be available in the area of women’s rights.
• TAs exceeding their mandates: Officially, chiefs have no power to allocate land in towns, though some reportedly continue to do so, occasionally leading to conflicts with town authorities. Chiefs are also still - without legal authority - dealing with criminal cases, and, feeling that their authority has been diminished, are seeking the restitution of their powers to order detention and impose community service. • Some chiefs do not have the legal competence to preside over many of the subjects that they are, in fact, adjudicating. • TAs at various levels receive payment from the Office of the President and Cabinet, therefore the TA structure is tied to the political party structure, and has been used to garner votes and support for the ruling party, for this reason it is believed that that their independence may have been compromised. • The chiefs and counsellors are not necessarily neutral or impartial: Factors include; a chiefs’ interest in promoting his or her authority, prestige and political influence; the respective status of the disputants; the likelihood of the case being taken to the formal state courts; and TAs, GVH and VH having family ties to one or both of the parties in a case brought before them.
Rule of Law and Access to Justice in Eastern and Southern Africa: Showcasing Innovations and Good Practices 107