One customary leader in particular, the qadi, is currently generating considerable attention in Mali in an attempt, as part of the peace process, to revalorise this institution’s position within the country’s legal system. Specifically, Article 46 of the 2015 Agreement on Peace and Reconciliation in Mali calls for the rehabilitation of the role of the qadis in the administration of justice with a particular focus on civil mediation, and for providing for high-quality training for all justice actors, including the qadis. Most recently, in the spring of 2017, Bamako hosted a national reconciliation conference that included both President Ibrahim Boubacar Keïta and the Coordination of Movements of Azawad, a northern Malian rebel alliance. The final report of the gathering reiterated the need to promote qadis as well as other traditional conflict resolution mechanisms and roles.
In Islamic law, a qadi is comparable to a magistrate or judge in contemporary Western judicial systems. As well as adjudicating disputes, the qadi performs extrajudicial functions, including mediation and managing public works. Within customary justice systems, the qadis and religious leaders at large — imams, marabouts and the like — occupy a special place. Given their social status, and their knowledge of the Qur’an, they are perceived as the key institution for the ‘preservation of Muslim law.’
The qadi exercises his functions as a member of the community he serves (figure 6). Indeed, it is a prerequisite of Islamic law that any individual seeking to act as qadi has to first demonstrate extensive knowledge of the local traditions and practices of that community. Familiarity with local circumstances allows the qadi to better understand the frame of reference of litigating parties and to mediate disputes by taking into consideration the past, present and future relationships in the community. Further, as an active member of the community, living in the same social landscape as the disputants, the qadi has a strong interest in preserving harmony. Traditionally, disputants are not considered as single entities, extrapolated from their social context, but rather as an ‘integral part of larger social units,’ such as the village. Immersed in a complex social landscape, the qadi operates at the intersection of moral and social demands and the formal legal Islamic normative. His mandate is therefore twofold, settling disputes and preserving social cohesion. As one respondent from Gao elaborated, ‘we believe that we are Muslims and [the qadis’] decisions are taken in accordance with the Qur'an and they maintain social cohesion.’
Based on the findings of this report, litigants appear before the qadi without the support of a professional advocate. One interviewee in the Tombouctou region, the area where the qadi is most prominent, explained that ‘at the invitation of the qadi, the problem is presented before him, his advisers, and some other notables.’ Disputants make their arguments directly in the presence of the qadi, and introduce their cases with great simplicity, unhampered by anything resembling the setting of formal tribunals. As one respondent explained, ‘the debates are open to the public, for anyone who wishes to attend.’ During the hearings, the claimant and his witnesses are invited to make their arguments; the qadi then listens to the counterpart, the defendant and his witnesses. If a witness cannot attend, the discussion of the case is postponed until they become available: ‘I remember that once, during the hearings, a witness had to leave for an emergency. It was then necessary to extend the hearings until he returned, two days later.’
Respondents described the qadis as handling mainly civil matters, including property, heritage, marital issues and verbal disputes. Nevertheless, as MINUSMA reported in March 2015, given the absence of the state and the paralysis of its institutions in the north of the country, some qadis now adjudicate criminal matters on a limited basis.
In addition, according to those interviewed, the qadis serve all members of the community without discrimination. Interviewees did not highlight any noticeable gulf between the qadis and themselves, however economically impoverished or educationally disadvantaged they might be. In several instances it was emphasized that access to justice through the figure of the qadi was universal. As one respondent explained, ‘all those who have a difficulty or a problem are allowed to appear before the qadi. He makes no difference between men and women, youth and elders.’ Notably, the services of the qadis in the field of dispute settlement are free. Some interviewees also highlighted that corruption and politics might deteriorate the functioning of customary justice systems. None, however, made that allegation against the qadis.