Introduction
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The violent events of 2012 highlighted a number of crucial obstacles to development that state and society in Mali continue to face. These include persistent identity boundaries that stimulate conflict, a deep lack of trust between a number of social groups and the state, as well as significant levels of insecurity and injustice. They also comprise a political system that is ill-suited to deliver public goods to Mali’s citizenry and a lack of essential public facilities throughout the country, such as adequate infrastructure, protection of property rights and good-quality healthcare.[1]

Two sets of issues – one factual, the other perceptual – have complicated efforts to address these obstacles. At the level of facts it is clear that Mali’s development needs vastly outstrip the means for putting in place policies and measures to meet them. While this is the case in most societies, Mali’s position on the 2014 Human Development Index, at 176 out of 187, suggests the challenges it faces are particularly daunting.[2] In addition, Mali is a state with relatively small areas having a medium-to-high population density and large areas with a very low population density. This makes broad and inclusive development beyond its densely populated core both politically unattractive and financially costly.[3]

At the level of perceptions, many Malian citizens consider their government ineffectual, self-serving and corrupt.[4] While attitudes range from deep distrust of the state in the north to disgust with corruption in the south, they suggest that the political and administrative apparatus for making and delivering inclusive development choices is considerably flawed. Finally, and of more recent date, the international community has firmly interpreted the 2012 crisis as part of a ‘perfect sandstorm’ of organised crime and terrorism in the wider Sahel, which comes with an unhelpful superficial focus on security, to the neglect of deeper causes of crisis.[5]

Taken together, this array of factors creates a dauntingly difficult environment to climb out of. It also suggests that a broad-based strategy is required to help Mali recover aspects – real or imagined – of its ‘emerging democracy’ status that received so much praise before 2012. This report examines how efforts to improve the provision of justice in Mali could be a key component of such a recovery strategy.

The report argues, and substantiates its claim, that in the short-to-medium term better justice outcomes can be achieved only 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 several decades to come is a critical starting point for making improvements to the provision of justice in matters that are of concern to Malians in their daily lives. Available evidence also suggests that the continuation of efforts to realise judicial reform through large, state-centred and top-down initiatives is unlikely to bring about better justice. On the contrary, it is likely to waste resources and give rise to frustration. Instead, small improvements that build organically on the functioning aspects of Mali’s many and varied justice systems offer a more promising path towards improved justice.

Although substantiated in the rest of the report, this is a sensitive and highly charged assertion in an era in which Weber’s concept of the state remains dominant and colonial boundaries immutable. In consequence, a political strategy is needed to take action on the report’s observations, as are sound, substantive initiatives. It is for this reason that the report targets a mixed audience of high-level decision makers and functional experts – Malian and international – who are willing to think ‘outside the box’ and deviate from the notion that the provision of justice is the prerogative of the state alone.

A study on the topic of justice in Mali is relevant for several reasons. First, the atrocities committed during the 2012 conflict by state security forces, radical groups and insurgents alike have made it even more urgent that justice is rendered in the north if the social contract between the Bamako-centred state and its northern citizens is to be patched up.[6] Second, many of the state-perpetrated injustices that need to be addressed in the north also prevail throughout the rest of the country. This applies, to a lesser extent, to atrocities associated with the 2012 conflict, in addition to matters such as corruption and unlawful detention. Fairer and better justice is required to shore up the legitimacy of the state and forestall social unrest. Third, an improved justice system, with more opportunities for redress and greater accountability, could stimulate progress in various core areas relevant to development. Fairer competition for jobs in public office, more equal legal treatment of Mali’s citizens and more efficient utilisation of public funds represent only a few such areas.

In terms of the report’s structure, Section 1 examines the political context in which justice in Mali is provided, with a particular focus on the consequences of unsettled identities and executive dominance over the country’s governance. The Section points to the need for a broad political approach to improve the provision of justice. Section 2 discusses systemic constraints on, and popular expectations of, Mali’s state and customary justice systems that impede their performance at the strategic level. Section 3 examines the operational performance of Mali’s customary and state justice systems, including transitional justice and past improvement efforts. It provides an overview of practical challenges to better justice that are nested in broader political and strategic ones. Finally, the conclusion offers a strategy for gradually achieving greater mutual recognition of, and synergies between, Mali’s customary and state justice systems as a pragmatic and yet innovative path towards better justice for the country’s citizens.

For an historical overview of the roots of conflict in the north and the historical persistence of such obstacles: Chauzal, G. and Van Damme, T., The Roots of Mali’s Conflict: Moving beyond the 2012 Crisis, The Hague, the Clingendael Insittute, Conflict Research Unit, 2015; Lecocq, B., Disputed Desert: Decolonization, Competing Nationalisms and Tuareg Rebellions in Northern Mali, Boston, Brill, 2010.
United Nations Development Programme (UNDP), Sustaining Human Progress: Reducing Vulnerabilities and Building Resilience, New York, UNDP Human Development Report, 2014.
On the challenge of projecting authority in such settings: Herbst, J., States and Power in Africa: Comparative Lessons in Authority and Control, revised edition, Princeton, Princeton University Press, 2014. The author coins the term ‘hinterland country’ to describe the mix of area size and population density that characterises Mali (see also box 2). Although political control in hinterland countries is straightforward, these countries face huge difficulties in relation to territorial control and development.
For example: Afrobaromètre, Le citoyen, l’État et la corruption, Sikasso, Présentation sur les résultats du round 5 des enquêtes Afrobaromètre au Mali , 2013; Several personal interviews, Van Veen, E. and Goff, D., Bamako, 27 March–3 April 2015; Chauzal and Van Damme (2015), op. cit.; Briscoe, I., Crime after Jihad: Armed Groups, the State and Illicit Business in Post-Conflict Mali, Clingendael CRU Report, The Hague, The Clingendael Institute, Conflict Research Unit, 2014.
International Crisis Group, The Central Sahel: A Perfect Sandstorm, Africa Report No. 227, 2015a.
For example, many Malians consider that a sustainable solution to the 2012 crisis requires that the perpetrators of past crimes are brought to justice. See: Coulibaly, M., Perceptions populaires des causes et conséquences du conflit au Mali, Bamako, Afrobaromètre, 2014; Allegrozzi, I. and Ford, E., Reconstruire la mosaïque : Perspectives pour de meilleures relations sociales après le conflit armé au Nord du Mali, Bamako, Oxfam/WilDAF/FeDDAF, 2013.
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The politics of justice