The historic predecessors of contemporary Mali were plural societies in the cultural, ethnic and linguistic sense. This was true for colonial Mali, as it still is for Mali as an independent state. A core challenge in any effort aimed at safeguarding the country’s future stability and development is how to ensure that this plurality is better reflected in the way the country is governed. The inadequate alignment between the country’s social ecology and its political power structures helps explain the coups, rebellions and other incidents of violence that have occurred over the past 55 years. This lack of alignment is particularly pronounced in the area of justice that features a mixture of customary and state justice mechanisms.

The preceding examination of state-provided justice at the political level has made it clear that Mali’s unsettled ordering of identities undermines the creation of a shared and legitimate concept of justice for the entire Malian polity. In addition, the dominance of the Malian executive over the country’s governance impedes the state from supporting the provision of justice as an impartial public service. At the systemic level, the state judiciary is difficult to operate effectively from an administrative point of view because of the advanced institutional architecture this requires. Furthermore, the state judiciary’s general use of the French language and the costs of both reaching and using it also make it inaccessible to most Malians. The more procedural and punitive character of Mali’s state law also creates a measure of cultural dissonance, given that the country´s customary justice systems are informal and more oriented towards reconciliation. At the operational level, the performance of the state judiciary suffers from endemic corruption, as well as a general shortage of tangible and intangible resources. This shortage is compounded by limited allocation and poor utilisation of the resources that do exist. Nevertheless, because of its national scope, the state´s justice system also holds potential for achieving greater equality in the treatment of Malians as citizens before the law and for offering a legal framework that can deal with the exigencies of the 21st century (such as resolving civil law disputes under conditions of urbanisation, or commercial disputes in a context of globalisation). For now, this potential is largely hypothetical as state justice in Mali is rather a matter ‘of its elites, by its elites and for its elites’.

On the other side of the coin, Mali has highly regarded customary justice mechanisms, including religious ones, which have deep historic roots, work well and are generally much used by the Malian population. At the political level, they are based on a strong sense of shared identity that is, however, limited by the extent of the particular ethnic group to which they apply. Since customary justice can be dispensed by customary authorities that are not necessarily legal specialists, these systems also feature a measure of political or executive influence on judicial decisions. Abuse of such influence, however, is reduced by the visibility and proximity of executive power holders to the communities they serve; that is, lines of accountability are shorter. Customary justice mechanisms do, however, reflect conservative social values that are not necessarily respectful of the rights Malians have under their constitution. At the systemic level, such systems are accessible, affordable and have good coverage. In contrast, their fragmentation also creates a lack of transparency and predictability in the legal decisions they generate. Operationally, customary authorities have little power to enforce judgments and customary systems also feature a certain level of corruption, albeit lower than that in the state judiciary.

In short, Mali features a colourful mosaic of legal pluralism in which the state does not have, will not have and should not aspire to have, a monopoly on the provision of justice for the next decades. In consequence, better justice outcomes realistically can only be achieved in the short-to-medium term (~10 to 20 years)[171] by stimulating greater mutual recognition and combined use of Mali’s customary and state judicial systems as more or less equal components of the country’s ‘justice ecology’. The preceding analysis suggests three principles on which a strategy could be built to realise such outcomes:

First, there is a need for intellectual flexibility, which amounts to recognising Mali’s legal reality and looking for pragmatic ways to improve the quality of justice that is being delivered on the basis of what already exists. Tenuously holding on to the fictional notion that the state is the only possible source of positive law and that the state judiciary has a sufficiently substantial presence throughout the country to be both accessible and functional belongs in the realm of wishful thinking. Blanket rejections of the state judiciary because of its lack of independence, corruption and poor operational performance are equally unhelpful.

Second, there is a need to consider Mali’s various justice systems on the basis of relative equality. If the purpose of the law is to enable an orderly society and to serve the people through the fair adjudication of their differences, there is no reason why the state’s legal system should be considered as inherently superior to other legal systems that co-exist on the same territory. The state may, of course, provide the law of last resort for disputes that Mali’s customary justice mechanisms are not able to settle effectively. This, though, is superiority in the sense of subsidiarity, not in the sense of dominance. It is encouraging that the recently concluded peace treaty cautiously acknowledges the principle of equality by emphasising the need to strengthen the role of customary justice systems (in particular that of the Cadi).[172]

Third, there is a need to prioritise legal innovation as a key method for identifying ways to progress justice in Mali. More advanced legal systems have gone through many useless reforms and dead ends of their own that are better not repeated, such as holding non-violent suspects in prolonged pre-trial detention for failure to provide bail, imposing mandatory minimum sentences that do not allow for judicial discretion, and making incarceration an almost purely punitive experience. Unfortunately, most efforts at judicial reform in Mali have so far been state-centred, top-down and reflect the classic legal reform strategies described above. As the results of this approach have been limited and because it risks repeating mistakes made elsewhere, it should be largely abandoned without, however, abandoning the state judiciary. An obvious asset is Mali’s rich legal heritage, such as Timbuktu’s long-standing practice of mediation and legal review on the basis of Islamic law, or the practice of carrying out customary justice in the ‘Toguna’ in Dogon society,[173] which could be built on more strongly to innovate justice in line with the socio-cultural disposition and stage of development of Malian society.[174]

If these principles are adopted to improve the state of justice in Mali through a hybrid approach, two questions arise. First, what sort of strategy can turn the inevitable political hesitancy and resistance into support? Second, how can practical ways be identified to create greater recognition of, and better synergy between, state and customary systems of justice in Mali? Since these are evidently questions to which answers need to be developed organically as a result of genuine deliberation between Malian stakeholders over time, this report is not the place to suggest a prescriptive set of recommendations. Instead, it offers a five-step process that can gradually generate insights that might lead to answers. Each step is briefly laid out below.

(1) Map the nature and legitimacy of Mali’s customary justice systems in detail

As the first step of a process to develop ideas that may lead to greater recognition and better synergy between Mali’s justice systems, a mapping of the existing range of customary justice systems would be helpful.[175] This mapping should focus on criteria that enable assessment of both the performance and the development of such systems, for example, their: a) transparency; b) impartiality; c) rate of judgment implementation; d) ability to innovate; and e) (potential for) linkage with the state judiciary or with other customary mechanisms. Such a mapping has the advantage of being relatively neutral in character and focused on knowledge generation. It can be organised in ways that create political buy-in, for example as part of an effort to bring justice closer to the Malian people. An innovative way to implement it would be to field teams of politicians, representatives of the state judiciary, researchers and customary justice peers for a few months to travel through the country and to exchange with, and learn from, representatives of different customary justice systems and the communities they serve.

(2) Organise ‘Justice Summits’ throughout Mali

The knowledge and insight generated through such a mapping would provide the basis for a broad-based and extended series of conferences, bringing together representatives of the various providers and stakeholders of Mali’s legal pluralism to discuss the current justice challenges that Malian citizens face, how these can be creatively resolved and what their own role might be in making this happen. The purpose of holding summits throughout Mali is to allow different regions an opportunity to host each other and to share their good practices. It would be best to not automatically hold such a summit only in Bamako, which would probably lead to the state’s legal system dominating discussions. A more open and reflective dialogue is needed that explores ideas and options beyond the confines of currently prevailing positive law and its representatives. These justice summits could be a visible demonstration of the government’s commitment to implementing the recently concluded peace agreement, especially if they were coupled at the local level with a programmatic mechanism (and modest funds) that could enact practical ideas emerging from their deliberations. It is quite conceivable that such an initiative would be embraced and supported by the international community.

(3) Make greater use of customary justice leaders as legal officials of the state

Because the ability to cooperate benefits from mutual exposure and shared experience, a practical initiative of the sort referred to under point 2 above could be to make it easier for customary leaders to act as mediators in civil and criminal cases, as well as to increase their use as assessors by the state judiciary. At present, Mali’s positive laws enable some of this on paper, but they either prescribe criteria that few customary justice leaders meet, or stipulate appointment procedures that are overly centralised. Instead of reducing the possibilities for using the expertise of customary justice leaders in the state’s judicial processes (as some have proposed), the relevant laws should rather be reviewed with the aim of facilitating it since this creates greater exposure of customary justice practices to the state judiciary and vice versa.[176] For example, the recruitment of assessors up to the level of the Courts of Appeal could be decentralized. Also, creating peer learning networks for assessors could help them increase their familiarity with the state’s legal system. Conversely, alternative dispute resolution methods and customary justice mechanisms could feature much more prominently in the training curriculum for state legal professionals. Such initiatives would, if applied at scale, have the potential advantages of reducing the caseload of state courts, increasing the enforceability of customary judgments and increasing awareness of the state’s legal professionals of the existing variety of customary justice practices.

(4) Work towards recognition of those customary justice mechanisms in positive law that enjoy adequate levels of popular legitimacy and are open to development

The accumulation of experience that might result from points 1 to 3 above can gradually produce better insight into how the quality of customary justice mechanisms can be improved and their status enhanced. At present, the customary mechanisms that serve the justice needs of most Malians enjoy very little by way of formal status. This is problematic on two counts. First, if Malians seek to have their justice needs resolved via a customary mechanism and this fails, they face a choice of starting proceedings entirely anew through the state system or dropping the case, which is neither an effective nor a financially attractive proposition. Second, it means that customary mechanisms are underutilised as useful assets for providing better justice by pushing them into the twilight area of popular legitimacy and state sanction where it is more difficult to grow and develop. In short, a conversation should be started on how customary mechanisms and leaders are best formally recognised as sources of positive law and how, at the same time, their transparency can be increased and their orientation modernised where necessary. It is important, however, that such efforts largely take place on the basis of the social parameters of the customary justice mechanisms themselves.[177]

(5) Imagine what the next iteration of Malian justice could look like based on the results of these completed steps

Assuming that each of the steps above were to be completed, Malians would have a much firmer grasp of the state of both their national and customary justice systems, and of how they can better work together. From here, Malians would also be well placed to create a new iteration of their justice system that draws on the strengths of each, that is modernised and that also fits in organically with their culture. If this process were to be successfully carried out, and such a new system could demonstrate a positive effect on the quality of justice outcomes it generated, Mali could become a source of inspiration for justice development for other fragile post-colonial states.