Why did Mali retain an imported judicial system after its independence?

At the time of independence, Mali’s elites chose to adopt the European model of governance and justice that the French had introduced – in particular the French Civil Code system.[48] On the one hand, this provided the newly established country with a unified, state-of-the-art justice system that promised equal treatment for all on the basis of a shared set of rights and duties. This could have overcome the question of how to resolve disputes across communities belonging to different ethnic groups (their variety is depicted in figure 2 below). It could have also resolved the potential unequal treatment of similar cases in different customary justice systems.[49] In addition, the greater procedural formality of the French legal system also had the potential advantage of enhancing transparency and strengthening the social contract. In short, introduction of the French system could have improved the quality of legal process available to Mali’s citizens in terms of its consistency, equality and predictability.

However, in reality the choice of the French legal system also reflected a simple calculation of power and privilege. Domestic elites associated with colonial rule and culture chose to keep its institutions in place to maintain their own advantages. This mirrored similar choices in other post-colonial states.[50] Despite an initial effort under President Keita to customise French law to suit Malian culture, the French system of the time was largely copied to the letter.[51] Although some new laws have been adjusted since, colonial laws that have not been repealed or amended are generally still in force, resulting in a confusing mixture of colonial and post-colonial laws.[52]

OECD, An Atlas of the Sahara-Sahel, Paris, Sahel and West Africa Club, 2015

Four factors of systemic dysfunction: complexity, language, cost and culture

The key consequence of Mali’s choice to retain the imported French legal system was the creation of permanent tension between the justice needs of the population and the type of justice that the state is able to provide. This tension is situated at the systemic level, meaning that it is inherent in the design of the state’s judicial system and not primarily a function of how it operates (discussed at length in section 3). Its main effect is that it renders the state judiciary largely inaccessible for the majority of Malians. Because this tension is systemic, it cannot be resolved by increasing resource allocations to the state judiciary as some might argue. In short, even if one were to ignore the politics of identity and executive governance discussed in the previous section, upgrading the quality of justice that the Malian state provides is not achievable through resources alone. It requires a more fundamental rethink of the justice that Malians need and how the state can effectively provide this. Systemic tension is largely generated by four factors.

A first factor is the sheer complexity of the French legal system, which is characterised by a significant level of legal, educational and institutional sophistication, that the Malian state, not having gone through the stages of historic development that France has experienced, is unable to attain. Simply put, Mali did not have, and does not have, the required organisations, culture, capabilities or resources to operate the legal system it imported. For example, full implementation of the adopted French system requires an institutional ecology, and financial and training resources, that are not present and that a country like Mali could not accomplish on its own in its present circumstances. This is not to suggest that Malians require less justice or justice of a lower quality than anyone else, it merely amounts to saying that the French system as imported at the time is ill-suited to the level of development and type of society that Mali currently has (see also box 2 below).[53]

A practical manifestation of this complexity is the fact that the officers of the judicial police, for example, often do not understand how the judicial system works, are insufficiently trained to apply due process in criminal investigations, or, in some cases, are illiterate.[54] Another practical manifestation of this complexity is that litigants often need to engage intermediaries to help them navigate the state’s judicial system. This is a consequence of the existence of conflicting laws, the procedural sophistication of the French legal system, high rates of illiteracy and the small proportion of the population who speak French, as mentioned below.[55] Such intermediaries, however, increase the cost of using the state judiciary because of the fees payable to them, and they can also easily trick litigants into making additional – excessive – payments. For example, lawyers are known to ask for a ‘judge fee’ as a regular part of their payment, which is in reality an illegal bribe.[56] This, in turn, increases distrust of the system and encourages corruption.

A second factor that generates systemic tension is that the language of the justice system is French, despite the fact that Mali is the least Francophone country in West Africa.[57] Only about one-third of the population, referred to as the educated elites, speak it, with only 10% being fluent in it.[58] In contrast, roughly 80% of Malians speak or understand Bambara and/or speak one of Mali’s 12 additional national languages.[59] In addition to these communication difficulties, the 2011 adult literacy rate stood at about 33% (see also box 2 below).[60]

A third factor is that Mali is one of the world’s 25 poorest countries,[61] which means that the filing fees associated with using the justice system are not easily absorbed by the average citizen in a country where half the population earns less than USD 1.25 per day, and where there is not a widespread functioning legal aid system.[62] In addition, as justice infrastructure is lacking throughout the country (especially in rural areas and the north), a litigant may need to travel over 200 km to reach the nearest court.[63] The costs of doing so are neither affordable nor justifiable for most, given the unreliability of the state justice system to produce fair justice outcomes (see sections 1 and 3).[64]

A fourth factor that generates systemic tension is that popular expectations of the form and purpose of justice differ from what the state has on offer.[65] In terms of general social expectations of, and preferences for justice, Malians see the state justice system as a last resort, and would rather deal with things ‘in the family´ where possible (see box 3 below).[66] Taking someone to court is socially not seen in a positive light.[67] A popular French proverb adopted by Malians that encapsulates this sentiment is “a bad arrangement is better than a good trial”.[68] The desire of Malians to find a resolution that benefits all can also be seen in the procedures of the Mediator of the Republic, whose goal is to persuade the winning parties in disputes between the state and its citizens to renounce some of their gains for the benefit of the losing party.[69]

More specifically, many describe Malian traditions and culture as tolerant, conflict-avoiding, and consensus-seeking,[70] which contrasts with the more procedural and punitive character of Mali’s positive law.[71] If one takes the long view, the first set of descriptors arguably symbolises the true nature of Mali’s popular culture of justice, which has been submerged by its colonial period and the successive crises in the north. Quite diverse ethnic groups that live together in present day Mali also lived together peacefully under the Ghana, Malinke, and Songhai empires,[72] where a culture of tolerance was deliberately cultivated by their rulers through conflict-prevention customs. One of the best-known of these customs is ‘cousinage’, also referred to as ‘joking relationships’ (sanankouya), which prescribes that specific ethnic groups or occupation-based castes must not fight each other, encouraging them instead to address each other with insults in a humorous way. These jokes are usually historically rooted, for example having one ethnic group remind another that they enslaved the other’s ancestors. These customs have been described as a daily therapy that lightens the atmosphere and allows people to trust one another.[73]

Another such conflict-prevention custom that seeks to short-circuit conflicts hinges on members of castes that have historically been viewed as being neutral meditators because they could not marry ruling elites and/or because they were perceived to have magical powers. At least one such caste, the griots (bards), is still regularly called on to solve disputes today.[74] Griots are known to use shame as a way to punish because it has the effect of banishing or marginalising a perpetrator. There is also another group of customary justice providers called ‘jokers’ who use another set of joking relationships (anankun) and shame to compel parties to apologise and to come to an informal resolution.[75] These ‘jokers’ are utilised primarily in cases of assault.[76]

Collective punishment, where a customary justice leader sanctions an entire clan in order to press them into punishing the wrongdoer in their family, is yet another traditional way of resolving a conflict without state involvement. Such methods, along with cousinage, have been identified as the reason behind Mali’s comparatively low crime rate and prison population,[77] as evidenced in a 2007 survey, which showed that Mali had the second-lowest prison population in Africa.[78] More importantly, these methods are much more flexible and informal than the formulaic and complex rules of procedure and legal protections characteristic of the state justice system. The consequence is that the legal proceedings and phraseology of the state judiciary are alien to the reality of many Malians, as they have little in common with centuries-old customary justice systems.[79] The argument – as sometimes advanced – that legal awareness-raising and civic education can remedy this situation misses the point because it takes the superiority of the state’s legal system as a given by assuming that making it better understood will stimulate litigants to avail themselves of it in greater numbers. However, many Malians might in fact continue to prefer the customary justice systems at their disposal for the resolution of particular types of disputes.

A final important consideration in respect of the culture and provision of justice in Mali is that more than 90% of its population is Muslim. Malians are known for practising a ‘tolerant’ version of Islam, which allows for democratic governance and rejects harsh eye-for-an-eye sharia law punishments.[80] Over the centuries this has given rise to a rich set of customary Islamic legal practices, centred on Timbuktu, that are characterised by appreciable sophistication and good functionality.[81] Such religious dispute-settlement mechanisms have continued to operate and not only enjoy significant credibility among much of the population, but also tend to generate justice outcomes aimed at reconciliation and based on mutual respect. The story of how resourceful Malians and their international supporters were able to save many of the manuscripts that testified to the progressive and tolerant nature of Islamic thought and rule that prevailed in Mali, continues to provide a stark counter-narrative to the dogmatic strictures of Salafism and radical Islamic fundamentalism.[82]

While there is the usual range of political beliefs among Malian Muslim organisations and their leadership, there are no significant tensions or divisions between adherents to the different denominations of the Islamic faith in Mali, such as Sunni, Sufi or Wahhabis.[83] Even its more conservative elements do not identify with the jihadists that invaded and have taken up residence in the north, or with their use of the harsher forms of sharia law as a basis for providing justice.[84] Malian Muslims identify strongly with the tolerant version of Islam that they said their ancestors developed, and which works with their local realities.[85] Moreover, there were formerly no significant political movements pushing to change the status of the state from secular to that of being based on sharia law, which has been cited as further evidence of Mali’s moderation in this respect.[86] An indicator to watch in this regard, however, is the growing political engagement of religious leaders (such as the Wahhabi Imam Mahmoud Dicko) and Islamic associations (such as Sabati 2012), which was noticeable, for example, during the last presidential and parliamentary election campaigns, and to what extent this phenomenon will translate into greater prominence of religion on the political agenda.[87]

This is not to say, of course, that there are no cultural or legal issues associated with Islamic political thought and Islamic elements in Mali’s customary justice systems. For instance, in 2009 President ATT sought to bring the Malian family code more in line with international standards of women’s rights. Although the law was adopted by the National Assembly, it was ultimately withdrawn, following mass protests led by conservative religious leaders. A new version of the law, which some argue is actually more conservative in its treatment of women than the original, was finally adopted in 2012.[88] This offers an example of codification of religion-based rules that clash with the secular principles of the Malian state that stipulate equality before the law.

However, to avoid painting such religion-inspired resistance against modern and secular conceptions of rights with too much of a conservative brush, it should also be noted that a number of Mali’s imams agreed to be trained and educated in the universal instruments regarding gender violence and for the promotion of women’s rights, and tend to be more receptive to promoting the rights of women as a result.[89] In further reflection of the diversity of customary practices and Islamic thought in Mali, it is also worth noting that some cultures in Mali are more liberal than these protests against the modernised family code would suggest. For example, women are exalted within the northern Tuareg tribes, which is a matrilineal society, as opposed to that of the southern-based Bambara culture. In contrast with the state laws and customs of the south, Tuareg customary law allows women to independently inherit property and ask for divorce. If a divorce occurs, women have the power to keep the marital home, property and custody of the children.[90]

In sum, this section has argued that Mali’s state justice system features an in-built tendency towards dysfunction that results from several systemic factors inherent in its design. This explains in part why Mali’s state judiciary hovers between poor performance and irrelevance for a large part of the country´s population. In contrast, Mali also features a range of customary systems that are grounded in the country’s rich legal history from before colonial times. Although these systems face their own challenges (see next section), they are much less complex, linguistically more accessible, and more affordable, and they enjoy continued cultural resonance with the Malian population.[91] They also contain points of orientation that can support the development of the country’s legal system(s) in a direction that is more aligned with its socio-cultural attitudes and preferences.