Executive summary

The 2012 crisis in Mali not only increased the urgent need to address a legacy of atrocities committed during the various conflicts in its northern regions, it also highlighted a broader crisis of governance throughout the country that showed, inter alia, the provision of justice to be severely defective. Poor-quality justice reduces the ability of Malians to resolve their disputes peacefully, undermines the social contract between state and citizens, and acts as a barrier to development. Written for a mixed audience of high-level decision-makers and functional experts – Malian and international – this report examines how the provision of justice in Mali could be improved through efforts that would form a key part of a broad-based strategy to help the country regain, at least partly, the status of ‘emerging democracy’ which had won it so much praise before 2012.

The report’s main contention is that in the short-to-medium term better justice outcomes can only be achieved by stimulating greater mutual recognition of, and synergies between, Mali’s customary and state judicial systems as more or less equal components of the country’s ‘justice ecology’. Accepting that the Malian state does not have, will not have and should not aspire to have a monopoly on the provision of justice for the next few decades is a critical starting point for making improvements to how justice is provided in matters that affect Malians in their daily lives. The evidence that underpins this contention can be summarised in three sets of observations.

First, at the political level, Mali’s unsettled ordering of identities, as demonstrated most clearly by its various Tuareg uprisings, continues to impede the creation and acceptance of a shared and legitimate concept of justice for the entire Malian polity. Particularly in the north, state-provided justice is experienced as the expression and extension of state power. For its part, Mali’s wide variety of customary justice mechanisms reflects a strong sense of shared identity, but this is typically limited to a particular ethnic group and does not extend nationally. A further issue at the political level is the dominance of the Malian executive over the state, which perpetuates political and administrative capture by a relatively small circle of elites, and facilitates the (ab)use of public office. This makes it almost impossible for the state to support the provision of justice as an impartial public service. Mali’s customary justice authorities on occasion also display a measure of such executive dominance, since they are not necessarily legal specialists and can combine executive prerogatives with judicial elements in their roles. Nevertheless, abuse is reduced by the visibility of local executive power-holders and their proximity to the communities they serve. Customary justice mechanisms do, however, reflect conservative social values that are not necessarily respectful of constitutional rights granted to Malians

Second, at the systemic level, the state judiciary is difficult to operate effectively from an administrative point of view because it is complex. This is largely the consequence of having imported a foreign (French) legal system without adequate customisation to make it congruent with Mali’s history, capabilities and resources. To function, it requires a well-developed institutional ecology, which Mali does not have. The result is that complexity limits access. Additional factors that make the state system inaccessible to the average Malian are its general use of the French language, the cost of reaching and using it, and the cultural dissonance that results from its more procedural and punitive character compared with Mali’s more informal and reconciliation-oriented customary justice practices. In contrast, such customary justice practices are much simpler, linguistically accessible and affordable, and enjoy cultural resonance in terms of their approach to justice. More problematically, however, their fragmentation creates a lack of transparency and predictability in the legal decisions they generate, since customary authorities have limited territorial coverage, are less bound by precedent and do not necessarily put their judgments into writing.

Third, at the operational level, 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. Also at the operational level, customary authorities have little power to enforce judgments and moreover are marked by a certain level of corruption as well.

The upshot of these three sets of nested observations is that customary justice mechanisms are, despite their problems, the providers of choice for the vast majority of Malians. Not only are they frequently turned to, they are also well regarded. In contrast, over a decade of effort to improve the state judiciary – with significant international support – is only at the early stages of generating returns. And yet, of Mali’s various justice systems, the one run by the state holds greater potential for ensuring more equal treatment of Malians before the law and for providing a legal framework that is better adapted to the exigencies of the 21st century because it is nation-wide in scope.

This suggests that a short- to medium-term ‘hybrid’ strategy (~10-20 years), which avails itself of customary and state elements, must be combined with a long-term strategy (~20-40 years), which gradually removes the political bottlenecks that have so far impeded the development of the state judiciary, to sustainably improve the quality of justice in Mali. As to the short- to medium-term strategy, there is no realistic alternative to stimulating greater mutual recognition of, and synergies between, Mali’s customary and state justice systems. As this will be a contentious endeavour, a gradual approach is needed to identify directions for development that are both acceptable and feasible. The five-step process below may provide this:

1.
Map the nature and legitimacy of Mali’s many customary justice systems with the aim of developing a better understanding of their performance and development potential.
2.
Organise ‘Justice Summits’ throughout Mali on the basis of such a mapping to discuss the problems that Malian citizens encounter in their justice systems, how these can be creatively resolved and what role Mali’s state and customary justice mechanisms can play in making this happen.
3.
Make greater use of customary justice leaders as legal officials of the state to increase mutual exposure and create shared experience on the basis of which cooperation between both systems can grow, and which in the long term could possibly lead to the creation of one system. It may also deliver the practical benefits of reducing the caseload of state courts and increasing the enforceability of customary judgments.
4.
Work towards recognition of those customary justice systems in positive law that enjoy adequate levels of popular legitimacy and are open to development with the aim of making better use of existing justice assets and offering Malians more synchronised ‘paths to justice’.
5.
Imagine what the next iteration of Malian justice could look like, based on the results of steps 1–4, drawing from the strengths of both state and customary systems while achieving both modernisation and maintaining an organic fit with Malian culture.

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