Women
Responses in relation to women and customary justice systems varied. Many interviewees across the three regions expressed the view that women are marginalised or prevented from directly participating in these systems, especially at a leadership or decision-making level. Various statements supported this view: ‘If you ever let a woman guide you, you will go bankrupt.’ ‘It is always said that a man is superior to women in customary justice.’ ‘There is never equality between a man and a woman, the woman must always be submissive.’ Often the reasoning for this discrepancy in treatment was tied to religious texts, specifically the Qur’an, with statements such as ‘they are treated as such in relation to religion’ and ‘I know the place of women in the Qur’an.’
An assertion heard in the regions of Mopti and Tombouctou in particular is that women are not truly marginalised because male leaders wait to take major decisions until they receive counsel from their wives at night. Other arguments to prove inclusivity included women’s participation in the processes as victims and that the emphasis of these systems is actually on women and children. A handful of respondents noted that the formal justice system, which holds men and women on more equal levels, contradicts the customs and traditions of the customary systems, even to an unacceptable degree. For example, some customary leaders reportedly believe that women have fewer property rights than men. This, some argue, would make adaptation of the customary justice systems to the modern justice systems difficult because ‘it would be a falsification of what God said.’
Such views have led some respondents to believe that modern justice is better because it provides more equality and to point out that the belief in customary systems that a woman is inferior to a man has caused a discord between the two systems. A question was also posed as to why the judges of the formal system do not use female assesors to provide needed advice. However, because judges tend to select local customary leaders as assessors, it may not be discrimination as much as a reflection of the current reality that women will likely not hold these positions in their communities.
Eighteen respondents also stated that customary justice mechanisms are either already evolving regarding the role of women or at least capable of doing so. Some of these statements were based on a perception that Islam has evolved to provide women with more rights than local customary leaders. Others pointed out that women increasingly have their own associations and participate in the leadership of political parties. In Niafunké, for example, four women are included at the commune council level and there is a mayor who has a female assistant. Two interviewees also asserted that one promising development is that women participate in local debates more now, and that with training the customary justice systems would be able to adapt.
Notably, in some communities, women were mentioned as functional parties in the customary justice system, even if not in leading roles. A village chief explained that in the event of difficulty he might call upon an imam and ‘maybe a woman, a youngster, or an elder.’ In one instance, a mayor created a committee, which included two women, for the mediation of a dispute. Two respondents explained that women, in particular older ones, are respected and active actors in customary justice systems. Of 57 respondents across the three regions on whether customary justice can adapt and become more inclusive of women, 22 answered yes, 18 answered no and 17 were uncertain.
Youth
Results were relatively sparse and mixed about the treatment of youth by customary justice mechanisms because interviewees were not especially responsive on the issue. We were also not able to interview members of the youth population beyond a few people under the age of 30 and several leaders of youth associations. A helpful follow-up to this study would therefore be one that focuses on youth populations in the northern regions on the same issues. The information revealed is still a helpful start, however, showing that views on these systems’ performance in connection with the youth population are varied, and providing a few descriptions of how they work for youth-related disputes.
In Niafunké, three residents reported their belief that customary justice can evolve regarding the treatment of youth. One explained that in the case of disputes between children of the same village, the issue is first handled within the family. If the family is unable to resolve the conflict, the case is brought to the village chief and, as a last resort, to the imam. Others explained that though women and children did not have any voice for a long time, today they do.
In Tombouctou, three in four interviewees who addressed this topic believed that, as is true for the issue of women, the laws of the state justice system regarding youth directly contradict customary justice traditions. Another interviewee explained that illegitimate children are unable to inherit under sharia law.
Interviewees in Gao who were responsive on this issue were split between those who believed that customary justice can and cannot adapt in relation to children. Customary justice leaders affirmed that the rights of children are taken into account in the Islamic religion, though the extent of those rights was not specified.
In Douentza, the few people who addressed the subject of youth viewed customary justice as being as available to this demographic as it is for everyone else. In Mopti, three in five interviewees who addressed this topic expressed doubts that customary justice mechanisms would be able to change in regard to their treatment of youth. One individual explained that his doubts were based on traditional society being organised along age groups, which clearly define the responsibilities, rights, duties and privileges of each individual.
Slaves
For the most part, questions about the treatment of slaves by customary justice systems were dismissed as irrelevant in light of the belief that slavery no longer exists. However, it was also explained that “[E]ven if Article 2 of the Malian Constitution ensures equality between every Malian, we are in a hierarchical society where each member knows where [his or her] position stands.”
Among those who considered slavery to be a living institution in these regions, two groups could be identified. The first includes people who believe that customary justice can evolve in its position towards slavery. This notion is based on the religious argument that slavery is strictly forbidden in the Qur’an because everyone is equal in the eyes of God. Customary justice actors, and religious leaders in particular, therefore have the duty to treat everyone, including anyone considered to be a slave, equally and fairly.
The second group includes people who think that customary justice mechanisms are unable to evolve in regards to slavery. This opinion is based on the belief that the idea of slavery is too deeply rooted in the mentality of people in certain areas, and in the hierarchical Malian societal structures where family background confers specific rights, duties and privileges. For instance, two interviewees affirmed that a ‘slave’ would never dare to bring his ‘master’ to customary authorities. Another, however, pointed out that a generational gap exists, so even though old slaves would not bring their master to justice, younger generations might.
The interviews also offered interesting insights on the issue of slavery. A few respondents in Gao, Ansongo and Mopti asserted that certain slaves are satisfied with their status, or that the slaves are viewed as immediate family members. Other interviewees looked on slaves as people benefiting from their status. One declared that some slaves refuse to be liberated because they believe that according to their ancestors’ will, they have a duty to their masters to remain with them. Another revealed that in Mopti some captives have been chased away by their masters for financial reasons; the masters realised that their captives represented a financial burden when their slaves’ expenditures were higher than their return.
In Douentza, two village chiefs and one customary justice adviser stated that all strands of society, including descendants of slaves, are represented in their village councils (see figure 12).
